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decided: December 22, 1981.


No. 244 January Term, 1979, Appeal from the Order of the Superior Court at Nos. 1475 and 1476 October Term, 1977, entered December 19, 1978, affirming Summary Judgments entered by the Court of Common Pleas of Delaware County, Civil Action, Law, at Nos. 76-11734 and 76-13449.


James J. Binns, Philadelphia, Garland D. Cherry, Media, for appellant.

David H. Weinstein, Samuel E. Klein, David H. Marion, Philadelphia, for appellee.

O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty and Wilkinson, JJ. Kauffman, J., did not participate in the consideration or decision of this case. Nix, J., filed a concurring and dissenting opinion.

Author: Roberts

[ 497 Pa. Page 166]


These are libel actions brought by the former United States Attorney for the Eastern District of Philadelphia,

[ 497 Pa. Page 167]

    appellant Robert Curran, against the publisher of The Philadelphia Inquirer, appellee Philadelphia Newspapers, Inc. In the first action, appellant seeks damages for articles published by appellee in April of 1976 which reported appellant's resignation from office. In the second action, appellant seeks damages for an article published by appellee in September of 1976 reporting remarks made by appellant's successor in office, David Marston, Esquire.

Although the two actions are based on appellee's coverage of separate events, both actions ultimately are controlled by the issue of whether appellant has met the "actual malice" standard of New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). An equally divided Superior Court has upheld orders of the Court of Common Pleas of Delaware County entering summary judgments in both actions in favor of appellee.*fn1 We conclude that summary judgment was proper in the first action, as appellant's own evidence defeated the claimed actual malice in appellee's coverage of appellant's resignation. However, we agree with appellant that summary judgment was inappropriate in the second action, as the issue of actual malice in appellee's coverage of David Marston's remarks should have been left for resolution by a jury. Hence we affirm the order of the Superior Court entered in the first action. We vacate the order entered in the second, and remand for further proceedings.

I. Appellant's Resignation

Appellant was appointed to office in August of 1972. On March 31, 1976, one day before a scheduled meeting in Washington, D. C., with his supervisor, Deputy Attorney General Harold Tyler, appellant publicly announced his resignation from office, effective April 30, 1976.

[ 497 Pa. Page 168]

On April 1, the date of appellant's scheduled meeting with Harold Tyler, appellee published an article on the resignation. The article, written by Janice Schaffer, a reporter and staff writer for appellee, quoted appellant as having stated that the resignation was "'entirely' voluntary." Further quoting appellant, the article stated:

"'It absolutely took everybody by surprise . . . . It was no secret that my term runs out in August and no secret that I was thinking of leaving. It was just a question of when.'"

The article immediately added:

"Other federal sources, however, said that if Curran had not resigned, he would have been asked to resign at a meeting he had scheduled today with Harold Tyler, deputy attorney general with the Justice Department."

According to the article, appellant described the information supplied by the "other federal sources" as "'ridiculous,'" and added that the scheduled meeting with Tyler was to have involved "office business." The article further stated that Tyler "could not be reached for comment," and that Tyler's assistant, William Gray, "declined to comment."

The following day, April 2, appellee published a brief report on a statement made by a spokesman for Tyler denying that Tyler had planned to ask for appellant's resignation. According to the report, the spokesman for Tyler said that appellant had requested the meeting "to discuss several investigations pending in the office."

On Sunday, April 4, appellee's "In Passing" column, a review of the previous week's news, contained a two-paragraph summary of its first report on appellant's resignation. After repeating appellant's assertion that the resignation was "entirely voluntary," the summary added:

"Federal sources, however, said that the Justice Department was unhappy with Curran and was about to ask him to resign."

The summary made no mention of the statement of the spokesman for Tyler denying that Tyler had planned to ask for appellant's resignation.

[ 497 Pa. Page 169]

On August 27, 1976, appellant filed a complaint against appellee in the Court of Common Pleas of Delaware County. According to the complaint, appellee "did not receive any information from 'federal sources' indicating that Harold Tyler would ask plaintiff to resign . . .," and the report in appellee's April 1 article that appellant would have been asked to resign was a "false and malicious statement" which appellee had "purposely manufactured." Appellant demanded a jury trial.

Appellee denied appellant's allegations in a timely answer. Appellee also raised new matter which alleged that the coverage of appellee's resignation was not published with the actual malice required under Times v. Sullivan, supra.

II. Marston's Remarks

On September 23, 1976, four weeks after the filing of appellant's first complaint, a federal grand jury returned an indictment charging Theodore Rubino, Chairman of the Republican Party of Chester County, with extortion. Appellant's successor, David Marston, immediately held a press conference to explain the charge. In attendance was Janice Schaffer, appellee's staff writer who had written the April 1 article which formed the basis for appellant's first complaint.

The following day, September 24, appellee published an article on the Rubino indictment. Listed as co-authors were Schaffer and another staff writer, Robert Frump. After describing the details of the indictment, the article stated:

"Marston, who replaced former U.S. Attorney Robert Curran on June 30, also made reference to accusations that Curran did not vigorously pursue white-collar crimes if the suspects were politically well-connected. Both Curran and Marston were appointed by Republican administrations.

"'There is no place for politics in prosecution,' Marston said of the accusations. 'If it's a political corruption case and we can make it, we'll make it.'"

[ 497 Pa. Page 170]

Two days later, on Sunday, September 26, appellee ran a brief article entitled "Clearing the Record." This article stated that its previous story on the Marston press conference had incorrectly reported that Marston had made reference to accusations regarding appellant's reluctance to prosecute certain white-collar offenses. According to the article, "Marston commented only generally on politics and prosecutions, with no reference to accusations about Curran."

On October 5, 1976, appellant filed a second complaint against appellee. In this second complaint, appellant alleged that Marston had made no reference to accusations that appellant would not pursue white-collar crimes if the suspects were "politically well-connected." Appellant claimed that the statement in the article to the contrary was "falsely manufactured . . . solely for the purpose of doing reputational harm to Plaintiff . . . ." Appellant also alleged that "at the time of the press conference, it was clearly indicated that the investigation of Rubino was actually begun in December, 1975, while Plaintiff was U.S. Attorney." Appellant claimed that this fact had been "deliberately, wilfully and maliciously omitted" from the article on the press conference.

As in the previously filed complaint, appellant demanded a jury trial. Also as before, appellee denied appellant's allegations and raised new matter contending that the requisite malice was lacking.

III. Appellant's Evidence

The two actions proceeded together through the pre-trial stage of litigation. On December 7, 1976, in an effort to substantiate his first complaint, appellant took the deposition of James Seif, Special Assistant to the Assistant Attorney General of the Criminal Division, Richard Thornburgh (now Governor of Pennsylvania). As "Special Assistant," Seif ranked immediately below the Assistant Attorney General. Seif not only organized the work of the Criminal Division and reviewed all mail addressed to the Assistant Attorney ...

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