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decided: October 16, 1974.


Appeal from orders of Superior Court, Oct. T., 1972, Nos. 1069 and 1070, affirming orders of Court of Common Pleas of Montgomery County, Nos. 68-742 and 70-10184, in case of Barbara M. Menefee, executrix of the estate of Robert Walker Menefee, deceased v. Columbia Broadcasting System Inc., John O. Downey, Michael Grant, Freedoms Foundation, Kenneth D. Wells, Wallace D. Hall, Mrs. Wallace D. Hall, General Douglas S. MacArthur Veterans of Foreign Wars, Post 1507, Thomas Crompton.


Benjamin E. Zuckerman, with him Wright, Spencer, Manning & Sagendorph, for appellant.

M. Carton Dittman, Jr., with him Tyson W. Coughlin, and Ballard, Spahr, Andrews & Ingersoll, for appellees.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice O'Brien. Mr. Justice Roberts concurs in the result. Mr. Chief Justice Jones dissents. Concurring Opinion by Mr. Justice Manderino.

Author: O'brien

[ 458 Pa. Page 48]

Robert Menefee, whose executrix is the appellant here, was for twenty years a radio personality in and around Philadelphia. Since 1960, he was employed by radio station WCAU in Philadelphia, which is wholly owned by the Columbia Broadcasting System, Inc. In the summer of 1967, Menefee, who referred to himself as "opinionated but lovable," conducted a one-man talk show from 7:30 p.m. to 10:00 p.m. daily, in which he discussed topics of public interest or controversy. On August 25, 1967, WCAU, through its general manager, John O. Downey, and its Director, Michael Grant, who is also a Vice President of CBS, Inc., exercised a right to terminate Menefee's employment on thirteen weeks' notice, opting to pay him an additional salary rather than continue him in his position for that period. That same day, Grant informed newsmen that Menefee had been fired "because of poor ratings garnered by his nighttime talk show." Several articles subsequently appeared to the same effect in the Philadelphia magazines and newspapers.

Menefee, on January 16, 1968, filed an action in the Court of Common Pleas of Montgomery County against

[ 458 Pa. Page 49]

CBS, Inc., and Grant, alleging that the statements to newsmen falsely conveyed "to the public and the broadcasting industry that plaintiff was unable to draw an adequate listening audience, was incapable of earning satisfactory ratings for his program and was therefore incompetent in the performance of his assigned broadcasting duties."

The complaint further alleged that, as a result, "plaintiff has been forced to undergo trouble, inconvenience, loss of time and economic hardship in attempting to seek redress and overcome the damage caused by defendants' actions and has suffered extreme mental anguish thereby, all to his great financial loss and damage."

Thereafter, Menefee discovered additional information relating to his discharge by WCAU. In May, 1967, during his talk show, Menefee apparently said something unpleasant about Veterans of Foreign Wars Post 1507 and the Freedoms Foundation. Three officials of the latter organization and the VFW Post Commander soon met with Downey and Grant of WCAU and apparently communicated their displeasure at Menefee's continued employment by that station. In light of this discovery, Menefee, in 1970, filed a second complaint in Montgomery County, alleging, inter alia, that the defendants, CBS, Inc., Grant (both already defendants in the 1968 action), Downey, the Freedoms Foundation and three of its officers, and VFW Post 1507 and its Commander had agreed "in various combinations . . . to secure the termination of plaintiff's employment and publicly to issue as the reason therefor plaintiff's alleged inability to secure satisfactory program ratings, thereby maliciously, illegally and unlawfully injuring plaintiff in his profession as a radio broadcast personality."*fn1 The complaints in the 1970 suit allege

[ 458 Pa. Page 50]

    that by reason of the conspiracy to injure him in his profession, Menefee "was wrongfully discharged from his employment and caused to undergo severe financial loss, injury, and professional embarrassment as well as difficulty in securing further employment as a radio personality in the Philadelphia area," and that as a result of the conspiracy to interfere with his contract rights, Menefee "has been caused to suffer a loss of his business and occupation as a radio broadcast personality and to suffer great mental anguish, anxiety and depression with consequent injury to his reputation, character and earning capacity, for all of which plaintiff claims general, compensatory and punitive damages."

The two actions were consolidated and pretrial preparation proceeded (apparently largely through the taking of depositions), but Menefee died on November 9, 1971, one day before trial was to begin. Defendants in the 1968 suit then moved for judgment on the pleadings; defendants in the 1970 suit moved for summary judgment. Both motions were based primarily on the ground that the causes of action pleaded did not survive Menefee's death. ...

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