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August 15, 1978

PHILADELPHIA NEWSPAPERS, INC. t/a The Philadelphia Daily News, Bulletin Company t/a The Evening Bulletin, KYW-TV, WPVI-TV and WCAU-TV

The opinion of the court was delivered by: LUONGO

The factual record presently consists of the initial pleadings, answers to interrogatories, excerpts from depositions, admissions, and other exhibits, including copies of the allegedly defamatory newspaper articles. In addition, several affidavits are on file. Westinghouse Broadcasting Company, which operates KYW-TV, submitted the affidavits of Donald Fair and Matt Quinn, two of its reporters. The Bulletin Company submitted the affidavit of Harry Camp, one of the Evening Bulletin's police reporters. Plaintiff submitted the affidavits of Paul W. Nolan, an F.B.I. employee, and Paul Frankenfield, a Staff Inspector with the Philadelphia Police Department. Finally, Westinghouse Broadcasting Company submitted a rebuttal affidavit executed by Mr. Frankenfield.

 On a motion for summary judgment, of course, the court must view the evidence in the light most favorable to the party opposing the motion. Bishop v. Wood, 426 U.S. 341, 347 n. 11, 96 S. Ct. 2074, 48 L. Ed. 2d 684 (1976); United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S. Ct. 993, 8 L. Ed. 2d 176 (1962) (per curiam); Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir. 1976), Cert. denied, 429 U.S. 1038, 97 S. Ct. 732, 50 L. Ed. 2d 748 (1977). With that admonition in mind, the essential facts in this case may be summarized as follows. On January 27, 1977, the Philadelphia Daily News carried an article reporting the arrest of two men in connection with an elaborate combined kidnapping and attempted bank robbery. Exhibit E to Plaintiff's Memorandum of Law (Document No. 67). The article correctly identified the suspects as two brothers, John and Tyrone Mathis, and it included what purported to be a photograph of each man. The photograph captioned "Tyrone Mathis," however, was actually a photograph of plaintiff, John Mathis, who was neither Tyrone Mathis' brother nor a suspect in the case. On the same day, the Evening Bulletin also carried an article correctly reporting that two brothers named John and Tyrone Mathis had been arraigned on charges stemming from the kidnapping and attempted bank robbery. Exhibit I to Plaintiff's Memorandum of Law (Document No. 67). The Bulletin article, too, included what purported to be a photograph of each suspect, but the photograph captioned "John Mathis" was actually a photograph of plaintiff rather than one of the John Mathis who had been charged with the various crimes. Finally, KYW-TV, in a news broadcast that evening, ran a story on the arrests and arraignments. The broadcast included a picture of plaintiff, John Mathis, which was shown in conjunction with this story, and the announcer identified that picture as a picture of one of the suspects in the case. Additional facts bearing on these occurrences will be reviewed later in this opinion.

 The complaint alleges that:

"by reason of the said printing, publication and circulation of said false, scandalous, malicious, defamatory and libelous statements, . . . the Plaintiff has been brought into scandal and reproach and has been held up to odium, scorn and contempt amongst his neighbors, business acquaintances, customers and other good citizens in consequence of which the Plaintiff has suffered in his business, reputation, feelings and peace of mind to his great financial loss and damage."
Complaint P 16.

 Mathis seeks compensatory and punitive damages in an amount in excess of one million dollars. Id. See generally Gertz v. Robert Welch, Inc., 418 U.S. 323, 348-50, 94 S. Ct. 2997, 41 L. Ed. 2d 789 (1974) (absent a showing of "actual malice," private defamation plaintiff may recover compensatory damages only to the extent of his actual injury, and may not recover punitive damages).

 Inasmuch as this is a diversity case, state law furnishes the substantive rules of decision. See Byrd v. Blue Ridge Rural Elec. Coop., Inc., 356 U.S. 525, 78 S. Ct. 893, 2 L. Ed. 2d 953 (1958); Erie R. R. Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938). Neither the plaintiff nor any of the defendants has suggested that the law of any jurisdiction other than Pennsylvania might apply here. Defendants present three distinct arguments in support of their parallel motions for summary judgment: (1) Mathis cannot prevail under Pennsylvania law unless he demonstrates that defendants acted with "actual malice," and the record contains no evidence that could support a finding of "actual malice." (2) Even if Mathis could prevail on a showing of mere negligence, the record contains no evidence to support a finding that defendants were negligent. (3) The complained-of publications were privileged under Pennsylvania law and thus are not actionable. With respect to the first issue, all three defendants take essentially the same position, but it will become necessary to treat KYW-TV and the two newspaper publishers separately in considering the remaining issues. For the reasons set out in this opinion, I conclude that both newspaper publishers are entitled to summary judgment based on a common-law privilege, but that Westinghouse Broadcasting Company is not.


 Defendants argue initially that they are entitled to summary judgment because Pennsylvania law requires Mathis to show "actual malice" on their part in order to prevail. A review of the factual record, they urge, discloses no evidence at all that could support a jury finding of "actual malice," and so summary judgment in their favor is appropriate. Mathis contends, by way of response, that he need only establish Negligence on the part of defendants in order to prevail.

 If defendants' view of Pennsylvania law is accurate, they are unquestionably entitled to summary judgment, for the record is utterly devoid of evidence of "actual malice." In my view, however, Pennsylvania law allows a "private figure" plaintiff to recover based on a showing of negligence.

 This sharply disputed issue of Pennsylvania law can perhaps best be viewed in the context of a series of Supreme Court decisions that have dramatically altered the common law of defamation throughout the United States. At common law, with respect to all but one *fn1" of the elements of an action for defamation, strict liability was the rule. See J. Henderson & R. Pearson, The Torts Process 847 (1975); W. Prosser, Torts § 113 at 771-75 (4th ed. 1971). In particular, a defendant was held liable for publishing a defamatory falsehood, notwithstanding that he reasonably believed it to be true. The issue of reasonable belief in the truth of the statement might come into the case if the defense of privilege was raised, but the defendant's state of mind was simply irrelevant to the plaintiff's Prima facie case. See J. Henderson & R. Pearson, The Torts Process 847 (1975); W. Prosser, Torts § 113 at 771, 773 (4th ed. 1971). This rule was sharply undercut by the decision in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964), where the Court held that the first and fourteenth amendments, taken together, preclude an award of damages in a defamation action brought by a Public official to redress a defamatory statement 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." 376 U.S. at 279-80, 84 S. Ct. at 726. Several years later, in Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S. Ct. 1975, 18 L. Ed. 2d 1094 (1967), the Court extended New York Times v. Sullivan to defamation actions "instituted by persons who are not public officials, but who are "public figures' and involved in issues in which the public has a justified and important interest." 388 U.S. at 134, 87 S. Ct. at 1980.

 New York Times v. Sullivan was extended once again, this time to "all discussion and communication involving matters of public or general concern, without regard to whether the persons involved are famous or anonymous," in Rosenbloom v. Metromedia, 403 U.S. 29, 44, 91 S. Ct. 1811, 1820, 29 L. Ed. 2d 296 (1971) (plurality opinion) (footnote omitted). Under Justice Brennan's Rosenbloom formulation, which was joined by only two other members of the Court, even a "private figure" could not recover damages absent a showing of "actual malice," so long as the defamatory statements concerned matters of public interest. The five opinions filed in Rosenbloom clearly indicated, however, that the Court was divided over the proper reach of New York Times v. Sullivan, and several years later, in Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S. Ct. 2997, 41 L. Ed. 2d 789 (1974), the Court rejected the Rosenbloom standard in favor of a dichotomy between "public figures" and "private figures." Justice Powell wrote for the Court:

"We hold that, so long as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a Private individual."
418 U.S. at 347, 94 S. Ct. at 3010 (emphasis supplied, footnote omitted).

 The import of Gertz has been summarized in this way: "Public figures must prove actual malice to recover damages for defamatory falsehoods, but private figures may recover upon a showing of mere negligence." Note, Public Figures, Private Figures and Public Interest, 30 Stan.L.Rev. 157, 162 (1977). To put the matter more precisely, a state May, consistent with the Constitution, permit a private individual to recover damages in a defamation action "upon a showing of mere negligence." The issue here is whether Pennsylvania has chosen to do so.

 Defendants urge that Pennsylvania has not, and they rely on Matus v. Triangle Publications, Inc., 445 Pa. 384, 286 A.2d 357 (1971), Cert. denied, 408 U.S. 930, 92 S. Ct. 2494, 33 L. Ed. 2d 343 (1972), where the Supreme Court of Pennsylvania "specifically held that a libel action by a private individual against a media entity for a defamatory falsehood in a newscast relating to an event of (public interest) could be maintained only upon a showing of "actual malice.' " Memorandum of Westinghouse Broadcasting Company (Document No. 49) at 2. Matus, however, was decided during the period after Rosenbloom and before Gertz, a period in which the Supreme Court of the United States had announced, albeit in a plurality opinion, that the Constitution Required a showing of "actual malice" before damages could be awarded in a defamation action brought by a private individual to redress false statements concerning matters of public interest. See Discussion Supra. The Gertz decision, handed down in 1974, removed that constitutional constraint upon state law. Thus, the question here is whether Matus survived Gertz.

 No subsequent decisions of the Pennsylvania Supreme Court address this question. Defendants urge that Matus is still good law, in part "because there is no suggestion in the Matus opinion that the Pennsylvania Supreme Court embraced the "actual malice' standard with anything but enthusiasm." Memorandum of Westinghouse Broadcasting Company (Document No. 49) at 4. I disagree, however, as I discern no enthusiasm at all for the Rosenbloom standard in Matus. Justice Pomeroy's opinion for the Matus court reads in pertinent part as follows:

"On the . . . question of extending the reach of New York Times to matters of public or general concern, there was no disagreement among the five members of the Supreme Court who wrote or joined in opinions in support of the judgment affirming the Court of Appeals. We therefore accept this modification of the law of defamation in Pennsylvania, and with it the corollary that in such cases the reasonable care standard must give way to the more stringent standard of (actual malice). Specifically, we adopt as binding on us the holding of the plurality opinion in Rosenbloom . . . ."
445 Pa. at 395, 286 A.2d at 363 (footnote omitted).

 When the Supreme Court of Pennsylvania is ultimately faced with the question whether a "private figure" plaintiff may recover for defamation based on a showing of negligence, it will have to resolve that question by drawing on the policies that traditionally have shaped the Pennsylvania law of libel and slander. Although the common-law rule of strict liability is no longer viable in light of New York Times v. Sullivan, I see no reason to believe that the Supreme Court of Pennsylvania, which is now free to abandon the Rosenbloom "actual malice" standard in "private figure" cases, will choose to retain that standard. Nor have defendants pointed to any aspect of Pennsylvania law that would support such a prediction. Accordingly, I conclude that the Matus decision is no ...

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