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PIERCE v. CAPITAL CITIES COMMUNS.

February 7, 1977

ALFRED R. PIERCE
v.
CAPITAL CITIES COMMUNICATIONS, INC. AND RICHARD KELLMAN



The opinion of the court was delivered by: HIGGINBOTHAM

 Alfred R. Pierce, formerly a Commissioner of the Delaware River Authority and the Mayor of Camden, New Jersey, has brought this diversity action against defendants Capital Cities Communications, Inc., owner and operator of television broadcasting station WPVI-TV, and Richard Kellman, a television reporter employed by WPVI-TV, for an alleged defamation which occurred on November 20, 1973 when WPVI-TV televised a special program entitled "Public Bridges and Private Riches".

 Plaintiff seeks a total of four million dollars in damages, including two million for punitive damages.

 Defendants have filed a motion for Summary Judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. The parties have submitted affidavits, briefs, a transcript of the program, a videotape of the program which was shown at oral argument and several depositions. For the reasons stated herein, the defendants' motion for Summary Judgment is granted.

 In granting defendants' motion, I recognize that Alfred R. Pierce may feel that careful and accurate reporting could have given him a better and more favorable image. I also know that with the extraordinary powers of the media, their occasional failure to pursue the highest standard of accuracy has caused many honorable and responsible persons to decline any options to serve in public office because they are not willing to have their honest efforts vilified by omissions, excesses or distortions. But, this issue has been answered by the United States Supreme Court's holding that as a matter of Constitutional law a public official may not recover:

 
. . . damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with 'actual malice' -- that is, with knowledge that it was false or with reckless disregard of whether it was false or not. New York Times v. Sullivan, 376 U.S. 254, 279-280, 84 S. Ct. 710, 726, 11 L. Ed. 2d 686 (1964).

 By this Constitutional standard, the defendants, as to their comments on Pierce, win -- but merely by a scintilla. I hope that the media will never believe that a Constitutional right which precludes them from liability is a professional justification for sloppy reporting. *fn1" Obviously, I am aware of the problem of compressing complex factual data in a flashy television news setting. But hopefully, because of its instant and extraordinary impact with its abbreviated form, reporters should pursue an even higher level of responsibility. The defendant station's slogan "ACTION NEWS" should not become a synonym for " partially inaccurate news." The public deserves a better standard with or without the station's Constitutional immunity.

 I

 Mr. Pierce was appointed a commissioner of the Delaware River Port Authority by the Governor of New Jersey and served from June 4, 1962 until May 11, 1970; from 1969 until May 11, 1970 he served as Chairman of the Authority [Plaintiff's Complaint para. 12]. Plaintiff asserts that prior to the defendants' broadcast he ". . . was a person of good name, credit and reputation, both personally and professionally, and deservedly enjoyed the esteem and good opinion of his friends, acquaintances, business and professional associates, professional clients." He further alleges that he "... deservedly enjoyed the reputation of being honest, competent, upright and responsible. . . ." [Complaint para. 9]

 In approximately mid-August of 1973 defendant Kellman was authorized by his superior at Capital Cities, Mel Kampman, to prepare and produce a program to explore the activities of the Delaware River Port Authority and the performance of the Chairman, Ralph Cornell; this program was part of a series of news broadcasts on issues of public concern. [Kellman Deposition, pp. 23, 24 and 39].

 Fourteen statements made on the WPVI-TV broadcast form the basis of the plaintiff's defamation action:

 
para. 15 "When Washington crossed the Delaware River, it was absolutely free. When Action News reporter, Richard Kellman, crossed the Delaware River, it cost him sixty cents. Washington's crossing brought us a nation. Kellman's crossing brought us some incredible findings that go right into your pockets. For 90 days now, Action News reporter, Richard Kellman has traveled the bridges of the Delaware River Port Authority and the high speed road to profit. In a minute, Action News presents PUBLIC BRIDGES AND PRIVATE RICHES but hold onto your dollars. After this program you may want to swim across the Delaware River".
 
[WPVI-TV Transcript (TR.) Larry Kane, p.1]
 
para. 18: "The first hint of what lay ahead came in August of 1969 when the commissioners were to vote on a contract for the bridge superstructure. The steel lattice work that would support the road way of this largest cantilever highway bridge in the U.S. Bethlehem and U.S. Steel were the only bidders with Bethlehem the low bidder at forty-seven million dollars . . . eight million above the engineers' estimate.
 
[Kellman (K), TR. p. 3]
 
"Action News obtained a copy of the Port Authority minutes of September 17, 1969. At that meeting, a motion was made to readvertise for new bids. Voting no, were Pa. commissioners Smith, Marsh and Crisconi. New Jersey commissioners voting no included Chairman Alfred R. Pierce and the present chairman Ralph Cornell."
 
[K. TR. p. 5]
 
para. 20: "Bethlehem's bid was accepted and in 1969 construction began . . . Soon a fifty million dollar bridge had grown to one costing one hundred twenty million -- a cost difference equivalent to 120 million bridge tolls at 60 cents each. And so . . . as the toll-payers shelled out nickels, dimes and quarters to pay for the project some Port Authority commissioners saw an opportunity for enormous profits, profits on land deals made possible by the very bridge motorists would be paying for well in the year 2000."
 
[K. TR. p. 5]
 
para. 22: "For years . . . corporations have been buying up farmland, jockeying for position . . . waiting for the big land rush. Among the properties with identifiable owners . . . is the 90 acre plot off Route 322 . .. where the expressway linking Route 130 and 295 will be built. The deed is recorded at the Gloucester County Courthouse in Woodbury. It shows the property is owned by Alfred R. Pierce ...

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