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GEORGE W. VITTECK v. WASHINGTON BROADCASTING COMPANY (07/12/78)

decided: July 12, 1978.

GEORGE W. VITTECK, JR., APPELLANT,
v.
WASHINGTON BROADCASTING COMPANY, INC., A CORPORATION, APPELLEE



No. 827 April Term, 1977, Appeal from the Order Entered April 29, 1977, of the Court of Common Pleas of Washington County, Pennsylvania, Civil Action--Law, at No. 100 November Term, 1976.

COUNSEL

Dennis J. Stefanik, Washington, for appellant.

William D. Phillips, Washington, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Watkins, former President Judge, did not participate in the consideration or decision of this case.

Author: Cercone

[ 256 Pa. Super. Page 430]

Appellant, George W. Vitteck, filed a complaint in trespass seeking redress for alleged defamatory statements broadcast by the defendant-appellee, Washington Broadcasting Co., Inc. This appeal is from the order of the court below sustaining appellee's preliminary objections in the nature of a demurrer to the complaint.

At the outset, we reiterate two fundamental principles. First, when considering preliminary objections in the nature of a demurrer all well-pleaded material facts alleged in the complaint, as well as all the inferences reasonably deducible therefrom, must be deemed true. Allstate Insurance Co. v. Fioravanti, 451 Pa. 108, 299 A.2d 585 (1973); Barto v. Felix, 250 Pa. Super. 262, 378 A.2d 927 (1977). Secondly, "we are mindful of the rule that preliminary objections should be sustained and a complaint dismissed only in cases which are clear and free from doubt. By this we mean it must appear with certainty that, upon the facts averred, the law will not permit recovery by the plaintiff. Any doubt should be resolved by a refusal to sustain the objections." Allstate Ins. Co. v. Fioravanti, supra, 451 Pa. at 108, 299 A.2d at 587 (citations omitted); Clevenstein v. Rizzuto, 439 Pa. 397, 266 A.2d 623 (1970).

Appellant's complaint alleges that on November 12, 1975, and various times thereafter, the appellee, a local radio station, broadcast a story which identified appellant as having attended a meeting of the Board of Supervisors of

[ 256 Pa. Super. Page 431]

Canton Township. The broadcast allegedly went on to say that appellant engaged in a loud exchange with members of the Board; became enraged; refused to be seated notwithstanding repeated requests to do so; and left the meeting slamming the door as he exited. It is further alleged that appellee's broadcast stated appellant became involved in a scuffle with another individual and that criminal charges would be filed against appellant. Appellant avers that he, in fact, did not attend the meeting in question and therefore never engaged in any of the activities reported in the broadcast and, furthermore, appellee continued to broadcast the story despite being advised that it was false. Appellant alleges that the broadcasts were defamatory in that they "exposed (him) to public contempt, ridicule, aversion and disgrace and tended to induce an evil opinion of him in the minds of right thinking persons and deprived him of their friendly intercourse and society." The complaint further alleges that the broadcasts are defamatory per se, and were made with malice or a reckless disregard of the truth.

Appellee responded by filing preliminary objections alleging that the complaint failed to state a cause of action because: the matter communicated is not defamatory as a matter of law; the communication was privileged; and malice was absent due to mistaken identity. The court below sustained the first two objections and this appeal followed. We reverse.

Initially, we note that, contrary to appellant's assertion, it is the court's function and not the jury's to determine whether a given communication is capable of a defamatory construction. Corabi v. Curtis Pub. Co., 441 Pa. 432, 273 A.2d 899 (1971); Restatement of Torts 2nd Sec. 614 (1977). As the Court stated in Corabi, supra, 441 Pa. at 442, 273 A.2d at 904: "Procedurally, it is the function of the court, in the first instance, to determine whether the communication complained of is capable of a defamatory meaning (citing authorities). If the ...


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