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ROBERT J. DOMAN ET AL. v. BURTON S. ROSNER (AT NO. 304) AND ROGER D. FREEMAN (03/31/77)

decided: March 31, 1977.

ROBERT J. DOMAN ET AL., APPELLANTS,
v.
BURTON S. ROSNER (AT NO. 304) AND ROGER D. FREEMAN, (AT NO. 305) APPELLEES



Appeals from Orders dated September 26, 1975 of the Court of Common Pleas of Philadelphia County, Civil T.D.,L, Division, at No. 893 February Term, 1969 and No. 1441 July Term, 1968 Respectively. NOS. 304-305 OCTOBER TERM, 1976.

COUNSEL

Bruce K. Doman, Perkasie, for appellants.

Gordon W. Gerber, Philadelphia, for appellees.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Hoffman and Spaeth, JJ., concur in the result.

Author: Van Der Voort

[ 246 Pa. Super. Page 619]

At No. 893 February Term, 1969 in the court below, plaintiffs filed a complaint in trespass alleging that defendant Dr. Burton S. Rosner (Rosner) published defamatory matter regarding The Institutes for the Achievement of Human Potential (Institutes). The individual plaintiffs were directors of the Institutes, which is described in the pleadings as a non-profit organization

[ 246 Pa. Super. Page 620]

    whose purpose was the aid and treatment of brain-injured children. Defendant Rosner at the time of the complaint was a professor of psychology at the University of Pennsylvania, who had become associated with the Institutes as an investigator in one of its projects, viz., a project to test the methods of treatment of brain-injured children used by the Institutes running from September 1, 1966 through August 31, 1967 and funded in part publicly and in part privately. The project was never fully completed however Rosner concluded his tasks by writing and issuing a "final report". It is this report, the contents of which are alleged to be defamatory to plaintiffs, together with a letter and various re-publishings of the material content of the "final report", which are the gravamen of plaintiffs' complaint. The basic contention of plaintiffs is that Rosner, in his "final report", libelled plaintiffs by stating that Doman and the Institutes, as to the project on which Rosner was working, had contradicted basic understandings regarding mutual goals and that the plaintiffs withdrew their commitment and agreement to cooperate on the project, which was a comprehensive study of certain treatment for brain-defective children. Rosner filed an answer denying libelous statements and containing new matter wherein he averred that the material now alleged to be libelous had been published in good faith, without malice, and that it was privileged matter in the public interest concerning conduct of public officials or figures. Some five years following commencement of this action, and supported by an extensive deposition of defendant and lengthy interrogatories of plaintiffs, together with additional exhibits, defendant moved for summary judgment. Therein defendant argued that the subject statements were not defamatory as a matter of law, that the statements were made about public figures engaged in a project of public interest, and that Rosner acted without malice. By Order dated September 26, 1975, the lower court granted summary judgment in favor of defendant.

[ 246 Pa. Super. Page 621]

Our courts have held that "a libel is a malicious publication, expressed either in printing or writing or by signs and pictures, which tends to blacken a person's reputation and expose him to public hatred, contempt, or ridicule, or injure him in his business, trade or profession; [citations omitted]". Bogash v. Elkins, 405 Pa. 437, 439, 176 A.2d 677, 678 (1962).

It has long been the law that it is the duty of the trial court, in the first instance, to determine whether the language or circumstances complained of have a defamatory meaning and would therefore be actionable. Cosgrove v. Pane, 408 Pa. 314, 182 A.2d 751 (1962), Fox v. Kahn, 421 Pa. 563, 221 A.2d 181 (1966), and Miller v. Hubbard, 205 Pa. Super. 111, 207 A.2d 913 (1965).

When an action for libel has been brought the trial court by means of the pleadings, depositions, interrogatories and such other preliminary proceedings as are necessary or appropriate, must determine the character of the published material. Our courts have further held that "the question of whether the language used in the allegedly defamatory article can fairly and reasonably be construed to have the libelous meaning ascribed to it by ...


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