The opinion of the court was delivered by: VANARTSDALEN
Plaintiff claims in this libel action that an article in the March 6, 1978 issue of Time Magazine erroneously labeled him as an underworld criminal figure. The magazine defends on the basis of the substantial truth of the article, and for the second time in this litigation, moves for summary judgment upon that issue. The motion will be granted, not on the basis of the truth of the statements contained in the article, but because the statements were privileged.
The article in question discussed the possible impending indictment of United States Congressman Daniel Flood. It stated that Congressman Flood had been characterized by his former aide, Stephen Elko, as "an official who used his considerable influence to direct federal contracts to people and companies that said "thank you' in cash." It stated that a congressional investigation into Congressman Flood's activities was expected, and that investigations "by at least eight separate U.S. Attorneys' offices" were already under way. It then outlined three specific instances of suspected misconduct by Congressman Flood, the first of which concerns the present plaintiff. The challenged portion of the article reads:
Among the matters under scrutiny: Ties between Flood and Pennsylvania Rackets Boss Russell Bufalino. The suspected link: the Wilkes-Barre firm of Medico Industries, controlled by President Philip Medico and his brothers. The FBI discovered more than a decade ago that Flood steered Government business to the Medicos and traveled often on their company jet. Investigators say Bufalino frequently visited the Medico offices; agents tape-recorded Bufalino's description of Philip as a capo (chief) in his Mafia family. Elko's testimony has sparked new investigative interest in the Flood-Medico-Bufalino triangle.
In mid-1979, defendant Time Magazine moved for summary judgment on the issue of the substantial truth of the allegedly libelous material. In support of that motion, defendant submitted several affidavits, including the affidavit of John Danahy, a former FBI agent. Attached to the Danahy affidavit was a typed report on the subject of "La Cosa Nostra; Philadelphia Division," as well as a personal profile card on Philip Medico, both of which the affidavit purported to identify as official FBI documents. Both documents state that Philip Medico has been identified by an "informant" alternately code-named "PH T-3" and "PH 591-C*" as a close associate of Russell Bufalino and a "capo" or "capodecina" in La Cosa Nostra. The affidavit stated that La Cosa Nostra is the FBI's term for Mafia, and that the "informant" was not a person, but was in fact an electronic listening device, by means of which a recording had been made. By memorandum opinion and order dated August 30, 1979, I denied the defendant's motion for summary judgment, primarily because the Danahy affidavit was not based on the personal knowledge of the affiant as required by Federal Rule of Civil Procedure 56(e). That denial was expressly made without prejudice to defendant's right to renew its motion in the event that further discovery should suggest a more competent affiant.
In the course of the August 30 opinion, I concluded that the test of the truth of the allegedly defamatory statements would be a narrow one. Defendant would be required to prove, as the article cautiously and plainly states, only that FBI agents tape-recorded Bufalino's description of the plaintiff as a Mafia chief, not what plaintiff refers to as the "underlying assertion" that he held "an official position in an international criminal society and was engaged in organized criminal activities." In his response to the present motion, plaintiff challenges this conclusion, arguing that under Pennsylvania law, "repetition of another's words does not relieve one of the responsibility of proving the truth of the underlying assertion even if he accurately ascribes all he says to the original utterer." Plaintiff's brief at 8, citing Mathis v. Philadelphia Newspapers, Inc., 455 F. Supp. 406 (E.D.Pa. 1978); Corabi v. Curtis Publishing Co., 441 Pa. 432, 273 A.2d 899 (1971). While there may well be merit to this contention, I do not find it necessary to address the issue at this time, since, as will be discussed infra, the new evidentiary affidavits submitted in conjunction with this motion are insufficient to resolve the truth issue, regardless of whether the statement sued upon is given broad or narrow scope.
There are two affidavits now submitted in support of defendant's renewed motion for summary judgment. Both are by former FBI officials, and both purport to establish, by means of the same two documents previously submitted in conjunction with the Danahy affidavit, that FBI agents did in fact record Russell Bufalino's description of the plaintiff as a Mafia chief. One of the affiants, David Breen, states that from 1962 to 1972 he was in charge of an ongoing organized crime investigation conducted by the Philadelphia office of the FBI, and that at the same time he was in charge of all related electronic surveillance. He states that the La Cosa Nostra report was prepared in the Philadelphia FBI office at his direction and under his supervision, and that the personal profile card was prepared at his direction and kept in files maintained by the FBI.
He states that he knows, from his experience with the FBI and his familiarity with the code names assigned to the "informant," that the information in the documents was derived from a tape-recording made by means of an electronic listening device and transcribed by highly trained individuals capable of identifying the voices of the persons so recorded. The other affiant, Patrick Collins, also in a supervisory position with the FBI, confirms Breen's interpretation of the documents, primarily on the basis of his "general experience with similar such reports," and his familiarity with the practice and procedure of the FBI. He states that while he was in charge of the FBI's national organized crime program in New York City, he received a copy of the Philadelphia report prepared by Breen and used it in preparing a national report on La Cosa Nostra for 1971. As to the personal profile card, he avers simply that he once saw it in FBI files.
I conclude that these affidavits present a wholly insufficient basis for the entry of summary judgment on the issue of truth. It is true that the factual allegations contained in the affidavits are uncontroverted, except by general denials made by plaintiff in his complaint and reiterated in his present affidavit and responsive brief. Moreover, as noted in my August 30 memorandum opinion, such general denials are ordinarily unavailing against specific factual allegations contained in a movant's affidavit. See, e.g., Tunnell v. Wiley, 514 F.2d 971 (3d Cir. 1975); Smith v. Webb, 420 F. Supp. 600 (E.D.Pa. 1976). But this court must also recognize the difficulty that plaintiff would have in specifically controverting these particular factual allegations. It would be a challenging task indeed for him to "prove a negative" in this case, see Mathis, supra, 455 F. Supp. at 414; Corabi, supra, 441 Pa. at 449, 273 A.2d at 908-09, i. e., by establishing that FBI agents have never tape-recorded Russell Bufalino describing Philip Medico as a Mafia chief. As a practical matter, the only denial that the plaintiff can make is a general denial.
This practical consideration must be viewed in light of the fact that, in Pennsylvania, the burden of proof on the issue of truth rests with the defendant, not the plaintiff. It has been announced by both the legislature and the courts of this state that it is for the defendant to prove the truth of the statement, rather than for the plaintiff to prove its falsity. See 42 Pa.C.S.A. § 8343; Corabi, supra, 441 Pa. at 449, 273 A.2d at 908. Cf. Herbert v. Lando, 441 U.S. 153, 175, 99 S. Ct. 1635, 1649, 60 L. Ed. 2d 115 (1979) (noting recent judicial trend toward shifting burden of proof on truth issue from defendant to plaintiff). In other words, the falsity of the defamatory statement should be presumed. Corabi, supra.
A related consideration springs from federal procedural law. Under Rule 56 of the Federal Rules of Civil Procedure, material submitted in support of a motion for summary judgment must be viewed in the light most favorable to the opposing party. Adickes v. Kress & Co., 398 U.S. 144, 157, 90 S. Ct. 1598, 1608, 26 L. Ed. 2d 142 (1970). The opposing party is entitled to the benefit of all reasonable doubts and inferences that may arise in connection with the motion. Harold Friedman Inc. v. Thorofare Markets Inc., 587 F.2d 127, 131 (3d Cir. 1978).
In whatever light the present affidavits are viewed, they are sufficient to establish the authenticity of the attached documents as official FBI materials. Both affiants state that they are former FBI officials who, through personal acquaintance with the documents in question, are able to identify them as official FBI records maintained in the ordinary course of FBI activity.
However, even granting the authenticity of the documents, and assuming arguendo that they would be admissible into evidence at trial, I am of the opinion that a firmer factual foundation than this is necessary to establish the truth of the publication and thus to justify the granting of summary judgment in this case. Neither affiant appears to have any personal knowledge of the factual bases for the proffered documents. Even the one affiant who claims to have directed and supervised the preparation of one of the documents professes no personal awareness of the source of the information contained therein, and gives no indication that he actually participated in the gathering of that information. No affidavit has been presented by any individual who actually installed the electronic listening device allegedly used, who actually monitored it, who produced or was ever personally aware of a tape-recording made from it, who actually transcribed such a tape-recording, or who was personally aware of the identity of all the participants in any relevant conversation so recorded and capable of accurately attributing speech among them. Thus, there is no information on the present record from which this court can make any conclusive finding as to the truth of the allegedly defamatory statements contained in the FBI documents. Inasmuch as the plaintiff has repeatedly and specifically denied that he is a "capodecina" in La Cosa Nostra he has raised a significant factual issue as to the likelihood that the FBI ever recorded anyone uttering such a description of him. The conclusion that this dispute is sufficient to prevent summary judgment upon the issue of truth is inescapable, when defendant's affidavits, replete with factual gaps and displaying only a partial basis in direct personal knowledge, are weighed against all the presumptions and inferences to which a non-moving libel plaintiff is entitled.
Among the possible defenses to an action for defamation, the Restatement includes, in addition to the defense of truth, a number of different common-law privileges, conditional as well as absolute. One such conditional privilege is entitled "Report of ...