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FOGEL v. FORBES

July 29, 1980

Maxwell S. FOGEL and Anna Fogel
v.
FORBES, INC., James Michaels, Phyllis Berman



The opinion of the court was delivered by: BRODERICK

MEMORANDUM

I.

 This is an action for defamation and invasion of privacy brought on the basis of diversity jurisdiction in which plaintiffs seek compensatory and punitive damages. Presently before this Court is defendants' motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.

 Defendants in this action are Forbes, Inc., James Michaels, Editor of Forbes Magazine and Phyllis Berman, author of the article in which the photograph that sparked this litigation appeared. Defendants' motion alleges that the pleadings, depositions and exhibits establish that there is no genuine issue as to any material fact and because defendants are entitled to judgment as a matter of law, summary judgment should be entered in favor of all defendants. Plaintiffs have responded to this motion and have submitted an accompanying exhibit and affidavit. Defendants then submitted a reply to plaintiffs' response to defendants' motion for summary judgment. For reasons set forth herein, defendants' motion for summary judgment is granted.

 II. UNDISPUTED FACTS

 Plaintiffs, Dr. Maxwell Fogel and Anna Fogel, his wife, while on a trip to Guatemala, had their picture taken without their consent while standing at an airline counter, next to a quantity of boxes in the Miami International Airport. A researcher for Forbes Magazine arranged to have the picture taken to illustrate an article entitled "Miami: Saved Again". The article and the photograph appeared in the November 1, 1977 issue of Forbes Magazine.

 III. APPLICABLE LAW

 The Court agrees with the parties that the law of the Commonwealth of Pennsylvania is applicable in this diversity action. Therefore, this Court must determine how the Pennsylvania courts would resolve the substantive issues presented by this motion for summary judgment. See, e.g. Avins v. White, 627 F.2d 637, Nos. 79-1747, 79-1748 (3d Cir. June 30, 1980).

 Under Pennsylvania law the torts of defamation and invasion of privacy are separate and distinct torts. Uhl v. Columbia Broadcasting Systems, Inc., 476 F. Supp. 1134 (W.D.Pa.1979). Therefore, this Court will separately examine defendants' motion on the defamation claim and the invasion of privacy claim.

 IV. DEFENDANTS' MOTION FOR SUMMARY JUDGMENT DEFAMATION CLAIM

 Defendants in support of their motion for summary judgment with respect to plaintiffs' defamation claim contend that the photograph, caption and article cannot support the meaning alleged by the plaintiff and that the meaning alleged is not defamatory. The defendants also claim that the plaintiffs have admitted that they cannot prove any damage to their professions as a result of defendants' publication.

 A. The Non-Defamatory Character of the Communication

 Our initial substantive inquiry is whether, as a matter of Pennsylvania law, the communication published by defendants in Forbes Magazine on November 1, 1977 is capable of a defamatory meaning. As stated by Judge Adams in Steaks Unlimited v. Deaner, 623 F.2d 264 at 270-271 (3d Cir. 1980), "In Pennsylvania, "it is the function of the court, in the first instance, to determine whether the communication complained of is capable of a defamatory meaning. . . . If the court . . . (so finds), it is for the jury to determine whether it was so understood by the recipient . . . .' Thus, our initial substantive inquiry is whether, as a matter of Pennsylvania law, the statements made . . . are capable of a defamatory meaning such that there might exist a genuine issue of fact in this regard." It is therefore the function of this Court to determine, whether under Pennsylvania law, the communication complained of is capable of a defamatory meaning. "A communication is defamatory if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from dealing with him." Franklin Music Co. v. American Broadcasting Co. et al., 616 F.2d 528 at 541 (3d Cir. 1979); Corabi v. Curtis Publishing Co., 441 Pa. 432, 442, 273 A.2d 899, 904 (1971); Cosgrove Studio and Camera Shop, Inc. v. Pane, 408 Pa. 314, 318, 182 A.2d 751, 753 (1962); Restatement (Second) of Torts ยง 559 (1977).

  Pennsylvania courts follow the Restatement in defamation cases. Pierce v. Capital Cities Communications, Inc., 576 F.2d 495, 502 (3d Cir. 1978). Comments (b) and (d) of Section 614 of the Restatement (Second) of Torts (1977) contain guidelines for making the determination as to whether the communication is capable of bearing a particular meaning and whether that meaning is defamatory. Comment (b) states that:

 
The Court determines whether the communication is capable of bearing the meaning ascribed to it by the plaintiff and whether the meaning so ascribed is defamatory in character. If the court decides against the plaintiff upon either of these questions, there is no further question for the jury to determine and the case is ended. If, on the other hand, the judge decides that the communication is capable of bearing the meaning in question and that the meaning is defamatory, there is then the further question for the jury, whether ...

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