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decided: December 19, 1978.


No. 1475 October Term, 1977, No. 1476 October Term, 1977, Appeal from the Judgment of the Court of Common Pleas, Civil Action, Law, of Delaware County, at Nos. 76-11734, 76-13449.


Garland D. Cherry, Media, for appellant.

David H. Marion, Philadelphia, for appellee.

Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Spaeth, J., files an opinion in support of affirmance in which Van der Voort, J., joins. Cercone, J., concurs in the result in the opinion by Spaeth, J. Hester, J., files an opinion in support of reversal in which Jacobs, President Judge, and Price, J., join. Hoffman, J., did not participate in the consideration or decision of this case.

Author: Per Curiam

[ 261 Pa. Super. Page 122]

The six Judges who decided this appeal being equally divided the judgment is affirmed.


SPAETH, Judge:

Each of these two appeals, which have been consolidated, is from a summary judgment in favor of appellee, Philadelphia Newspapers, Inc., publisher of the Philadelphia Inquirer. Each action is in libel and is brought by appellant, a former United States Attorney for the Eastern District of

[ 261 Pa. Super. Page 123]

Pennsylvania. The question presented is whether a jury should have been permitted to decide whether the statements at issue were published with malice. We shall discuss the two cases separately.

I. Appeal No. 1475

In August, 1972, appellant was appointed United States Attorney, his term to expire in August, 1976. On Wednesday, March 31, 1976, appellant announced his resignation, effective April 30, 1976. In his affidavit incident to the motion for summary judgment appellant says that his decision to resign and return to private practice had been made some time before March 31.

As it happened, appellant had scheduled a meeting in Washington, D. C., for the evening of March 31 on business of the Attorney General's Advisory Committee, to which appellant had been appointed. Since he was to be in Washington for this meeting, appellant had also scheduled a meeting for the next day, April 1, at which he, three assistants, and Deputy Attorney General Harold Tyler were to discuss a criminal investigation. In accordance with this schedule, appellant, after announcing his resignation, departed for Washington, leaving his First Assistant, J. Clayton Undercofler, III, in charge.

On receiving word of appellant's resignation, Anthony Lame, a reporter for the Inquirer, telephoned James Seif, a Special Assistant under Deputy Attorney General Tyler. Upon being told by Lame that appellant had resigned, Seif replied: "It's a good thing he did, because they would have thrown his ass out of here if he hadn't." Lame says in his affidavit that Seif specified that appellant's resignation would have been demanded at the April 1 meeting, although Seif in his affidavit says no mention was made of the April 1 meeting. Lame also says in his affidavit that Seif's statement was consistent with information the Inquirer had previously received from reliable sources that the Justice Department was unhappy with appellant's performance of his duties, and that Tyler had been close to firing appellant

[ 261 Pa. Super. Page 124]

    before. Seif was in a position to know about personnel conflicts between the Department and the United States Attorneys; Lame considered him a reliable source, and had consulted him before on other matters.

Lame relayed this information to Janice Schaffer, another Inquirer reporter who was writing the story on appellant's resignation. She telephoned two other sources, who confirmed that the Justice Department was indeed seeking to replace appellant. She then spoke with Undercofler. Undercofler told her that the Washington meeting with Tyler had been scheduled for weeks and involved office matters, and that appellant's decision to resign was for personal reasons and not because of a potential firing. Later that day Undercofler again spoke with Schaffer and urged her to call William B. Gray, director of the executive office for United States Attorneys; Undercofler said that Gray would confirm that appellant was not going to be fired and that the meeting with Tyler concerned routine matters.

Schaffer reached appellant by telephone at the Wilmington, Delaware, train station. Appellant said that the Washington meeting was routine, and denied that he had resigned in order to avoid being fired. Schaffer also telephoned Gray; he did confirm that appellant had scheduled the meeting of April 1, but when asked whether the Justice Department was satisfied with appellant's performance, or whether Tyler had intended to ask for appellant's resignation, he refused to comment.

As a result of this activity, on April 1, which was a Thursday, the Inquirer ran a news story about appellant's resignation; the story included the following paragraphs:

Other federal sources, however, said that if Curran had not resigned, he would have been asked to resign at a meeting he had scheduled today with Harold Tyler, deputy attorney general with the Justice Department.

Curran described that report as "ridiculous" and added that he had requested the meeting to discuss office business. Tyler could not be reached for comment. His assistant, William Gray, declined to comment.

[ 261 Pa. Super. Page 125]

During the day Tyler's office notified the Inquirer that not Tyler but appellant had requested the meeting with Tyler, and that Tyler had not planned to ask for appellant's resignation or to fire him. A news story reporting this was printed the next day, April 2.

On Sunday, April 4, another reference to appellant's resignation appeared in the Inquirer's column "In Passing," which was a review of the week's news. The column told of appellant's resignation, and added:

Curran said that his resignation was entirely voluntary and that, in any case, he had planned to resign at the end of his term in August. Federal sources, however, said that the Justice Department was unhappy with Curran and was about to ask him to resign.

There was no reference in the column to Tyler's denial that he had planned to ask appellant to resign.

Appellant's complaint charges that both the first paragraph of the April 1 news story -- that if he had not resigned, he would have been asked to -- and the item just quoted from "In Passing" were defamatory and published maliciously. By its motion for summary judgment appellee contended that there was no evidence of malice. The lower court agreed.


The requirement that malice must be proved was established by New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). There the Supreme Court held:

The constitutional guarantees [of freedom of speech and press] require . . . a federal rule that prohibits a public official*fn1 from recovering 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.

[ 261 Pa. Super. Page 126]

However, this is not the normal case, for it involves the first amendment; in such a case, summary judgment is a preferred procedure.*fn1a In Washington Post Co. v. Keogh, 125 U.S.App.D.C. 32,

[ 261 Pa. Super. Page 128365]

F.2d 965 (1966), cert. denied, 385 U.S. 1011, 87 S.Ct. 708, 17 L.Ed.2d 548 (1967), the court said:

In the First Amendment area, summary procedures are even more essential. For the stake herein, if harassment succeeds, is free debate. . . . Unless persons, including newspapers, desiring to exercise their First Amendment rights are assured freedom from the harassment of lawsuits, they will tend to become self-censors. And to this extent debate on public issues . . . will become less uninhibited, less robust, and less wide-open, for self-censorship affecting the whole public is 'hardly less virulent for being privately administered.' Smith v. People of State of California, 361 U.S. 147, 154, 80 S.Ct. 215, 219, 4 L.Ed.2d 205 (1959).

Id., 125 U.S.App.D.C. at 35, 356 F.2d at 968.

Similarly, in Bon Air Hotel, Inc., v. Time, Inc., 426 F.2d 858 (5th Cir. 1970), the court said:

Thus it is clear that, where a publication is protected by the New York Times immunity rule summary judgment, rather than trial on the merits, is a proper vehicle for affording constitutional protection in the proper case. Id., at 864-65.

This preference for summary judgment is not defeated by the principle that generally an allegation of malice presents a jury question. Thus in Washington Post Co. v. Keogh, supra, 125 U.S.App.D.C. at 34-35, 365 F.2d at 967-68, the court said:

That state of mind should generally be a jury issue does not mean it should always be so in all contexts, especially where the issue is recklessness, which is ordinarily inferred from objective facts. Summary judgment serves

[ 261 Pa. Super. Page 129]

    important functions which would be left undone if courts too restrictively viewed their power. (Footnote omitted.)

In Rosenblatt v. Baer, 383 U.S. 75, 86 S.Ct. 669, 15 L.Ed.2d 597 (1966), the Supreme Court considered a case tried before New York Times Co. v. Sullivan. Remanding for retrial because "the record suggests respondent may be able to present a jury question of malice as there defined," 383 U.S. at 87, 86 S.Ct. at 677, the Court said that " it is for the trial judge in the first instance to determine whether the proofs show respondent to be a 'public official,'" 383 U.S. at 88, 86 S.Ct. at 677 (emphasis supplied). In a footnote, the court added:

Such a course will both lessen the possibility that a jury will use the cloak of a general verdict to punish unpopular ideas or speakers, and assure an appellate court the records and findings required for review of constitutional decisions.

Id., at 88 n. 15, 86 S.Ct. at 677.

These considerations are equally applicable where the determination to be made is whether the proofs show malice. Thus in Wasserman v. Time, Inc., 138 U.S.App.D.C. 7, 9, 424 F.2d 920 (1970), Judge WRIGHT said:

In my judgment New York Times Co. v. Sullivan makes actual malice a constitutional issue to be decided in the first instance by the trial judge applying the Times test of actual knowledge or reckless disregard of the truth. Id., at 922 (WRIGHT, J., concurring) (footnote omitted).

Applying these principles here, we conclude as follows: When a public official sues a newspaper for defamation, the court must on a motion for summary judgment make a threshold inquiry into actual malice: Unless the court finds on the basis of pretrial affidavits, depositions, and documentary evidence that the plaintiff can prove actual malice in the New York Times sense, it should grant summary judgment for the defendant. Bon Air Hotel, Inc. v. Times, Inc., supra; Wasserman v. Time, Inc., supra (WRIGHT, J., concurring). It is not enough for the plaintiff, in resisting summary judgment, to argue that there is a

[ 261 Pa. Super. Page 130]

    jury question as to malice; he must make a showing of facts from which malice may be inferred. Thompson v. Evening Star Newspaper Co., 129 U.S.App.D.C. 299, 394 F.2d 774 (1968). Accord, Oliver v. Village Voice, Inc., 417 F.Supp. 235 (S.D.N.Y.1976), Meeropol v. Nizer, 381 F.Supp. 29 (S.D.N.Y.1974). See also Bandelin v. Pietsch, 563 P.2d 395 (Idaho, 1977), cert. denied, 434 U.S. 891, 98 S.Ct. 260, 54 L.Ed.2d 177 (1977). Such an inference must be clear. Cf. New York Times Co. v. Sullivan, supra.

It is important not to overstate this preference for summary judgment; it must be exercised in a manner consistent with St. Amant v. Thompson, supra. In that case the Court spoke of the circumstances in which a jury determine is appropriate:

The defendant in a defamation action brought by a public official cannot, however, automatically insure a favorable verdict by testifying that he published with a belief that the statements were true. The finder of fact must determine whether the publication was indeed made in good faith. Professions of good faith will be unlikely to prove persuasive, for example, where a story is fabricated by the defendant, is the product of his imagination, or is based wholly on an unverified anonymous telephone call. Nor will they be likely to prevail when the publisher's allegations are so inherently improbable that only a reckless man would have put them in circulation. Likewise, recklessness may be found where there are obvious reasons to doubt the veracity of the informant or the accuracy of his reports.

390 U.S. at 732, 88 S.Ct. at 1326 (footnote omitted).

At first reading, it might appear that this statement is in conflict with the cases we have just discussed, which emphasize the preference for summary judgment. However, as we shall discuss ...

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