The opinion of the court was delivered by: BRODERICK
This is an action for defamation brought before this Court on the basis of diversity jurisdiction. On December 30, 1977 defendant moved for summary judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure, on the ground that defendant was privileged to make the alleged defamatory publication. This Court denied defendant's motion, it appearing to this Court at that time that there existed a genuine issue of material fact. Thereafter, both parties undertook discovery and, on May 23, 1979, defendant filed this second motion for summary judgment. For reasons set forth herein, defendant's motion is denied.
By letter dated February 10, 1976, plaintiff, representing himself as a member of the Board of Directors of the Muscular Dystrophy Association (M.D.A.), wrote to the Whitechapel Bell Foundry (Whitechapel) of London, England which had recently cast the "Bicentennial Bell". In this letter plaintiff proposed to Whitechapel that it sell to him the metal shavings or chips derived from the process of tuning the bell in order that he might package and sell individual pieces of the bell to the public as momentos of America's Bicentennial celebration. Plaintiff stated in the letter to Whitechapel that all profits from the sale of the shavings would go to M.D.A., but that since M.D.A."s charter precluded expenditures of its capital for purposes which could be classified as "risk", his proposal would have to be carried out with private funds with the profits donated to M.D.A. On or about May 16, 1976, Whitechapel shipped 403 pounds of the metal shavings to plaintiff. Plaintiff took possession of the shavings and remitted the agreed price to Whitechapel.
As stated in his deposition, plaintiff subsequently contacted numerous individuals in an attempt to get his marketing scheme off the ground. Plaintiff ultimately entered into a partnership with two individuals, Feldman and Weidman. However, Whitechapel, believing that plaintiff was intending to sell the shavings for his own profit, brought an action on September 27, 1976 against plaintiff, Feldman, and Weidman in the United States District Court for the District of Massachusetts seeking to rescind the contract and to enjoin plaintiff from proceeding with the marketing of the shavings. The complaint in that action alleged, inter alia, that plaintiff herein had represented himself to Whitechapel as a Director of M.D.A.; that plaintiff herein was not then, and never has been, a director of M.D.A.; that plaintiff herein had proposed to Whitechapel that the profits from the sale of the shavings would go to M.D.A.; and that Whitechapel had only sold the shavings to plaintiff on the understanding that the profits would go to M.D.A. The Whitechapel complaint also alleged that plaintiff had obtained the shavings from it fraudulently, and that plaintiff, Feldman, and Weidman were engaged in a further fraudulent scheme to sell the shavings for their own profit.
On October 8, 1976, United Press International (U.P.I.) disseminated a news report concerning the complaint filed by Whitechapel. This report provided in pertinent part:
A London foundry which cast America's original Liberty Bell is suing to block a Bucks County firm from selling 403 pounds of chips carved off the Bicentennial Bell, England's birthday gift to the United States.
In a suit filed Thursday in U. S. District Court, the London firm Whitechapel Bell Foundry Ltd. accused Manufacturer's Marketing Co. of Feasterville, Pa. of being involved in a "fraudulent scheme".
Last February, the suit said, Monroe Hanish of New Jersey, representing himself as a director of The Muscular Dystrophy Association proposed to Whitechapel the purchasing of the chips or shavings derived from the tuning of the Bicentennial Bell.
Hanish was quoted as saying that all the profits of the sale of the chips would go to the Dystrophy Association.
Whitechapel said it agreed to sell 403 pounds of chips on the basis that profits would go to the Association . . ..
Whitechapel said it requested, but did not receive, a confirmation from Hanish that all the profits had gone to the fight against muscular dystrophy.
Named as defendants with Hanish were Frederick M. Feldman and Harold R. Weidman, trading as Manufacturer's Marketing.
On the same day, KYW television station in Philadelphia, which at all relevant times was owned, managed, operated and controlled by defendant Westinghouse Broadcasting Company, broadcast two news stories (one on its 5:30 p.m. news program, the other on its 11:00 p.m. news program) based on ...