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filed: October 31, 1980.


No. 2915 October Term, 1978, Appeal from Order of the Court of Common Pleas, Civil Division, Philadelphia County, No. 1016 May Term, 1976.


Robert C. Brown, Jr., Easton, for appellants.

Joseph F. Roda, Philadelphia, for appellees.

Spaeth, Hester and Cavanaugh, JJ. Spaeth, J., files a concurring opinion. Hester, J., files a dissenting statement.

Author: Cavanaugh

[ 281 Pa. Super. Page 591]

Appellants-plaintiffs, the Police Commissioner of Pottsville and two police officers, appeal from the order of the lower court granting summary judgment for appellees-defendants, the Philadelphia Newspapers, Inc. and various of its employees. Appellants had initiated an action in libel seeking to recover compensatory and punitive damages allegedly sustained as a result of a defamatory article published by appellees in the Philadelphia Inquirer on May 18, 1975. The story concerned the roles played by appellants in the fatal shooting of a sixteen year old youth who allegedly was about to commit a robbery and the community's reaction to the incident. Appellants allege that the headline and the article erroneously indicated that some residents of Pottsville believed the shooting was committed intentionally as a result of a long-standing political feud between the victim's father, Police Chief Thomas Quirk, and appellant police commissioner. The trial court held that the article was a neutral and accurate report of public officials acting in their respective official capacities, and it was published without malice and was not, as a matter of law, defamatory. In this appeal, appellants contend that the entry of summary judgment was erroneous because the article and headline were capable of a defamatory meaning and a genuine issue of fact

[ 281 Pa. Super. Page 592]

    existed as to whether the article and headline were published with "actual malice."

The facts are as follows. On May 10, 1975, at approximately 10:30 o'clock in the evening, the police commissioner of Pottsville, William J. Brophy, received information from the State Police that Stephen Quirk, son of the Chief of Police, and another youth were armed with shotguns and knives and planned to rob a diner that evening. Appellant Brophy summoned officers Charles J. Charlesworth and Glenn A. Baker to his home and organized a stakeout of the diner. Appellants concealed themselves in the woods behind the diner. Shortly after midnight, two youths armed with rifles appeared and paused behind a garbage bin. The Quirk boy spotted appellant Charlesworth and allegedly pointed his rifle at the officer. Appellant Charlesworth, approximately seven feet away, fired his shotgun and fatally injured young Quirk.

On May 25, 1975 the Philadelphia Inquirer published an account of this incident and the community's reaction to the shooting. The article was entitled, "A Killing in Pottsville: Reform or Vendetta?" The article began as follows:

POTTSVILLE, Pa. - Early last Saturday morning, a policeman in this old central Pennsylvania coal town shot to death a youth who police say was about to commit a robbery.

The suspect, Stephen Quirk, 16, was the first person in at least 25 years to be killed by the police in Pottsville, a decaying mountainside town of 20,000 where crime-free days are the rule and police go for weeks without hearing of so much as a burglary.

He was also the son of Pottsville's police chief, Thomas Quirk.

What is even more remarkable about the shooting is that there are people in this town who suggest that it was no accident. They say it was the logical, albeit extreme, extension of a dispute that has been tearing the 30-man police department apart for 18 months.

[ 281 Pa. Super. Page 593]

"It was an ambush," said George Lindsay, the attorney for Chief Quirk.

The article then disclosed that the incident was a major topic of conversation among local residents who debated whether the police had used good judgment in attempting to catch the youths in the act of robbing the diner. The article continued:

The other talk-the talk of conspiracy-focuses not on Patrolman Charles Charlesworth, the man who apparently pulled the trigger, but on Police Commissioner William Brophy, who planned the police action that ended in the fatal shooting.

"It was Brophy and three of his hand-picked men who went out there," said Gary DeWitt, 29 who runs the Dairy Queen out on Route 61. "It's just my opinion, but there has to be more to this."

The article then revealed that appellant Brophy was an outsider who was hired by the previous mayor to reform the allegedly inefficient and corrupt Pottsville police force. The article outlined the tensions between appellant Brophy and Chief of Police Quirk who reportedly resented the new programs instituted by appellant Brophy. No mention was made of Appellant Baker and appellant Charlesworth was only referred to as the officer who shot the youth. The article mainly discussed appellant Brophy and his relationship with the community and certain elements of the police force.


[ 281 Pa. Super. Page 594]

In Pennsylvania, it is the function of the trial court, in the first instance, to determine whether the communication complained of is capable of a defamatory meaning. If the court determines that the statement is capable of a defamatory meaning, it is for the jury to decide whether it was so understood by the recipient. Corabi v. The Curtis Publishing Co., 441 Pa. 432, 442, 273 A.2d 899, 904 (1971); Cosgrove Studio and Camera Shop Inc. v. Pane, 408 Pa. 314, 317-18, 182 A.2d 751, 753 (1962); Vitteck v. Washington Page 594} Broadcasting Co., 256 Pa. Super. 427, 431-32, 389 A.2d 1197, 1199 (1978). See Restatement 2d, Torts ยง 614.

"A libel is a maliciously written or printed publication which tends to blacken a person's reputation or expose him to public hatred, contempt or ridicule or injure him in his business or profession." Cosgrove Studio and Camera Shop, Inc. v. Pane, supra, 408 Pa. at 317, 182 A.2d at 753; Vitteck v. Washington Broadcasting Company, supra, 256 Pa. Super. at 432, 389 A.2d at 1200. False imputations of criminal activity or intentions as alleged in the instant case clearly can damage a person's reputation and standing in the community. See, e. g., Corabi v. Curtis Publishing Company, supra; Fox v. Kahn, 421 Pa. 563, 221 A.2d 181 (1966); Fegley v. Morthimer, 204 Pa. Super. 54, 202 A.2d 125 (1964).

To ascertain the meaning of a defamatory communication, it must be read in context. Corabi v. Curtis Publishing Company, supra, 441 Pa. at 444, 273 A.2d at 906.

The test is the effect the article is fairly calculated to produce, the impression it would naturally engender, in the minds of the average persons among whom it is intended to circulate. The words must be given by judges and juries the same signification that other people are likely to attribute to them.

Id., 441 Pa. at 447, 273 A.2d at 907, quoting Boyer v. Pitt Publishing Co., 324 Pa. 154, 157, 188 A. 203, 204 (1936).

Appellants argue that the use of the terms, "vendetta," "conspiracy," "no accident" and "ambush," give the reader the impression that appellants intentionally conspired to kill Stephen Quirk because of a feud between appellant Brophy and the deceased boy's father. Read together, these remarks reasonably could be interpreted as an accusation against appellants of intentionally harming the Quirk boy because of his father's animosity toward appellant Brophy.

The headline, "A Killing in Pottsville: Reform or Vendetta," could reasonably lead a reader to believe that a feud may have been the cause of the killing. The article begins with a description of the fatal shooting and then

[ 281 Pa. Super. Page 595]

    states that some residents of Pottsville thought that the shooting was "no accident" which indicates that the shooting was done intentionally. The next sentence links the shooting to a dispute in the police department. Attorney George Lindsay's quote, "It was an ambush," further strengthens the image of an intentional killing. Several paragraphs later, the article discloses that the citizens discussed whether the police used good judgment in their attempt to apprehend the youths. The author then wrote about the "other talk-the talk of a conspiracy" and quotes a resident as saying that Brophy went out with "three of his hand-picked men" and that "there has to be more to this." From these statements, a person could deduce that the intentional shooting mentioned earlier in the article was the end product of a conspiracy among appellants motivated by a dispute between Brophy and some members of the police force. We recognize that this article could be given a different, less offensive interpretation. Indeed, the author testified that it was not his intention to imply that some residents considered appellants guilty of criminal acts. Nevertheless, neither the mere susceptibility of an article to an interpretation which would render it innocuous nor the intention of the author conclusively defeats a right of action for libel. Corabi v. Curtis Publishing Company, supra, 441 Pa. at 447, 273 A.2d at 906-907.

Therefore, because we cannot conclude that this publication is incapable of defamatory meaning, the granting of summary judgment on this ground would be inappropriate.


[ 281 Pa. Super. Page 596]

Since appellants are public officials, however, there can be no recovery unless and until they prove, with "convincing clarity," that the defamatory statements relating to their official conduct were made with actual malice, that is, with knowledge that it was false or with reckless disregard of whether it was false or not. New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). See also Corabi v. Curtis Publishing Company, supra; Fox v. Page 596} Kahn, supra; Clark v. Allen, 415 Pa. 484, 204 A.2d 42 (1964). Malice has been interpreted as "an extreme departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers." Curtis Publishing Company v. Butts, 388 U.S. 130, 155, 87 S.Ct. 1975, 1991, 18 L.Ed.2d 1094, 1111 (1967). What constitutes a reckless disregard of the falsity of a statement was clarified in St. Amant v. Thompson, 390 U.S. 727, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968):

[C]ases are clear that reckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant, in fact, entertained serious doubt as to the truth of his publication. Publishing with such doubts shows reckless disregard to truth or falsity and demonstrates actual malice.

Id. at 731, 88 S.Ct. at 1325, 20 L.Ed.2d at 267.

In the instant case, the lower court granted appellee's motion for summary judgment because it concluded that the article was an accurate and neutral news account and was not published with malice. No written opinion was filed to explain its reasoning.


[ 281 Pa. Super. Page 597]

We first must ascertain the standard for review of an appeal from the entry of summary judgment. Summary judgment will be granted only "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Pa.R.C.P. No. 1035. In reviewing the record, the court must accept as true all well-pleaded facts in the non-moving party's pleadings, giving the non-moving party the benefit of all reasonable inferences to be drawn therefrom. Judgment can only be granted in cases clear and free from doubt. Just v. Sons of Italy Hall, 240 Pa. Super. 416, 368 A.2d 308 (1976); Ritmanich Page 597} v. Jonnel Enterprises, Inc., 219 Pa. Super. 198, 280 A.2d 570 (1971).

Appellees argue that some federal courts consider the granting of summary judgment the rule rather than the exception in public official libel actions. These courts hold, appellees contend, that at summary judgment the trial court is to make the initial inquiry into the existence of actual malice and that the plaintiff has the burden to prove actual malice with convincing clarity. See Bon Air Hotel, Inc. v. Time, Inc., 426 F.2d 858 (5th Cir. 1970); Wasserman v. Time, Inc., 138 U.S.App.D.C. 7, 424 F.2d 920 (1970) (Wright, J., concurring). As an indication that Pennsylvania courts share this view, appellees cited Curran v. Philadelphia Newspapers, Inc., 261 Pa. Super. 118, 395 A.2d 1342 (1978), wherein Judge Spaeth, author of the Opinion in Support of Affirmance, comments:

In the normal case we are wary of summary judgment . . . . However, this is not the normal case, for it involves the first amendment; in such a case, summary judgment is a preferred procedure. In Washington Post Co. v. Keogh, 125 U.S.App.D.C. 32, 365 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.

Id., 261 Pa. Super. at 126-27, 395 A.2d at 1346-47. [Footnote omitted.] Judge Spaeth, relying heavily on Judge Wright's

[ 281 Pa. Super. Page 598]

    concurring opinion in Wasserman v. Time, Inc., supra, formulated a standard to be employed by the trial court in determining a motion for summary judgment in a public official libel case:

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 . . . . It is not enough for the plaintiff, in resisting summary judgment to argue that there is a jury question as to malice; he must make a showing of facts from which malice may be inferred . . . . Such an inference must be clear.

Id., 261 Pa. Super. at 129-30, 395 A.2d at 1348. See Bon Air Hotel, Inc. v. Time, Inc., supra; Wasserman v. Time, Inc., supra. Thus, this view appears to vary from the normal summary judgment procedure in at least two ways. The trial court is not required to view the evidence in the light most favorable to the non-moving party and the trial court must make an initial determination as to whether the plaintiff can establish actual malice with convincing clarity. Using this standard, the Opinion in Support of Affirmance held that the plaintiff did not establish sufficient facts from which the trial court could clearly infer malice.

Judge Hester, author of the Opinion in Support of Reversal, found sufficient factual inconsistencies that warranted the submission of the issues to a jury. He urged the court to adopt the rationale that when there is a factual dispute as to the existence of actual malice, summary judgment is inappropriate. See Curran v. Philadelphia Newspapers, Inc., supra, 261 Pa. Super. at 148-49, 395 A.2d at 1357-58.

Initially, we note that since Curran v. Philadelphia Newspapers, Inc., supra, was affirmed by an equally divided court, it is of no precedential value. See: Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). We note ...

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