The opinion of the court was delivered by: SNYDER
Pare Lorentz, a motion picture writer and director, seeks money damages from Radio Station KDKA, its talk show host John Cigna, KDKA's owner, Westinghouse Broadcasting, Inc. (WBC), and its parent corporation, Westinghouse Electric Corporation (WEC), for defamatory remarks made during a talk show broadcast on March 1, 1977. Cross Motions for Summary Judgment will be denied.
In February of 1977, after considerable radio discussion had been engendered by a television program depicting the life of the late Senator Joseph F. McCarthy called "Tailgunner Joe" and an interview with Roy Cohn, the well known former aide to the Senator, John Cigna had a telephone conversation with a Joseph Mazzei concerning Mazzei's experiences as an undercover agent for the Federal Bureau of Investigation during the "McCarthy period". As a result, Cigna suggested that Mazzei appear as a guest on his show. About two weeks before his scheduled appearance, Mazzei delivered books, magazines, newspaper clippings, Congressional testimony, and other documents to Cigna, who, after studying the material, concluded that Mazzei had in fact infiltrated the Communist movement in the United States during the 1940's and 1950's. The Defendants claim Cigna told Mazzei before the show that during the broadcast he was not to identify anyone as being a Communist who had not previously been identified publicly as a Communist, and Cigna therefore did not anticipate that any accusations would be made which would require the use of the "dump button", which was connected to a tape delay system, during the broadcast. Although the reason is not clear from the record, Cigna called Mazzei by the fictitious name of "Dominic" during the March 1 program, and a discussion ensued between Cigna, his guest, "Dominic", and telephone callers. Relevant portions of the transcript of that broadcast read as follows:
"Guest: A group came into Pittsburgh, photographers, we had a photographer here that was in Spain who made the movie called "Spanish Earth' and who made a movie for the Resettlement Administration.
Cigna: These were Communists?
Guest: These were Communists. His name was Pierre Lorentz and he made a movie called "The Plow That Broke The Plains'."
"Cigna: Good evening . . . you're on the air with our guest.
Caller: Yes . . . I'd like to ask if he remembers the name of the picture that Pierre Lorentz was working on . . . and also, who was the photographer and do you remember?
Guest: You're talking about Pierre Lorentz . . . Pierre Lorentz went to Spain during the Spanish civil war and made the picture called "Spanish Earth'. He also made the picture called "Scorched Earth' for the resettlement administration . . . "
"Caller: And "The River' . . .
Guest: That's right . . . that's right . . . Pierre Lorentz was one of the biggest communists in hollywood (sic)."
"Cigna: Well, were Lorentz or any of these people ever convicted of anything?
" "Dominic': (* *) . . . was one of the World's greatest photographers, remember that?
"Dominic': Well, (* *) and Pierre Lorentz and (* *) . . . they were all members of the same cell."
"The reason Dominic is naming these people is because we have before us and we have checked out testimony given before these committees about these people. And these people were written up in newspaper articles when the hearings went on . . . . (T)his information is public knowledge."
The Complaint here is in five counts:
Count I alleges negligence, i. e. substandard conduct to a class of persons of whom Lorentz is one, resulting in injury to Lorentz's reputation and his lifetime work.
Count II charges the Defendants with extreme, outrageous and reckless conduct causing severe emotional distress citing Restatement (Second) of Torts § 46, which provides "(o)ne who by extreme and outrageous conduct intentionally or recklessly causes severe emotional ...