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March 22, 1982

Dorothy FITZPATRICK, a/k/a Debbi Fitzpatrick, in her own right and as parent and natural guardian of Marijo Calvanese, a minor; F. Emmett Fitzpatrick, Jr.; Carmen Calvanese; Paula Joan Fitzpatrick; F. Emmet Fitzpatrick, III; James Michael Fitzpatrick; and Peter John Fitzpatrick

The opinion of the court was delivered by: POLLAK


Plaintiffs, Dorothy Fitzpatrick, her husband F. Emmett Fitzpatrick, Jr., and their children, are citizens of Pennsylvania. Their diversity complaint alleges, in separate counts, causes of action for defamation, invasion of privacy, and intentional infliction of emotional distress. In anticipation of defendant's motion for summary judgment, the parties have requested, and this memorandum is limited to, a determination on the choice of law to govern the issue of liability on plaintiffs' cause of action for defamation.

 The events which prompted this law suit are not disputed:

 Defendant Milky Way Productions, Inc. ("Milky Way"), a New York corporation, publishes a weekly newspaper of general circulation called Screw. *fn1" On July 12, Milky Way received a request for publication of the following classified advertisement:

Gamble with Sex, Anything Goes, You're a Winner in Atlantic City. Have fabulous free fuck while vacationing. Kinky, sex-loving, exotic lady. Sensational, insatiable. Debbi, 908 Seacliff, Ocean City, N. J. Phone listed-Fitzpatrick.

 The request, printed on an order form clipped from a previous Screw edition, carried the signature "Debbie P. Fitzpatrick," the address "908 Seacliff Road, Ocean City, N. J. 08226," and a telephone number. The form was accompanied by a money order made payable in an amount sufficient to cover the cost of publishing the advertisement for one week. The ad appeared in Screw issue number 491, bearing the date July 31, 1978. Although the Fitzpatricks are domiciled in Pennsylvania, on July 24, 1978, the day when issue 491 first reached newsstands in New York City, plaintiff Dorothy (a/k/a Debbi) Fitzpatrick was residing at plaintiffs' summer home in Ocean City, New Jersey.

 The Fitzpatricks allege that the advertisement referred to, and was intended to lead the public to believe that it had been placed by, Debbi Fitzpatrick. *fn2" With respect to their claim for defamation, plaintiffs allege that the advertisement contained false statements of fact which were not privileged and did not amount to fair comment on matters of public concern or interest, "which statements constitute a libel and defamation of plaintiffs and a libel per se of plaintiffs by imputing to plaintiff wife criminal and immoral conduct." Complaint at 3. The Fitzpatricks seek to recover compensatory and punitive damages.


 A plausible claim can be advanced for applying the libel law of either of two states: (1) Pennsylvania-the place of plaintiffs' permanent residence and therefore, plaintiffs allege, the place where they have suffered the greatest injury to reputation; and (2) New York-the situs of Milky Way's incorporation and principal place of business and also headquarters for the publication of Screw. Plaintiffs contend for the application of Pennsylvania's libel law; defendant argues for applying New York law. *fn3"

 While they disagree about which state's defamation law should govern, the parties share a common view of what standards of care Pennsylvania and New York respectively impose on publishers in defamation cases such as this one: According to the parties, should Pennsylvania law be found to govern plaintiffs' defamation claim, then plaintiffs will merely be required to show negligence on Milky Way's part with respect to Milky Way's attempts, or non-attempts, to determine the source and reliability of the allegedly defamatory advertisement; if, however, New York law applies, it is the opinion of the parties that plaintiffs will have to meet the more stringent requirement of showing gross irresponsibility on the part of Milky Way.

 My own examination of the defamation law of the two states persuades me that the parties are probably right about Pennsylvania law but almost certainly wrong about New York law, the error on the latter score deriving from extended reliance on a quite inapposite New York case.

 In the following portion of this Memorandum, I consider the recent case law of defamation in Pennsylvania and in New York, and from that case law I distill certain conclusions as to the applicable standards of care in the two states. I have undertaken to examine these two bodies of case law, independently of the concurrent analysis advanced by the parties, for two reasons: A correct determination of the standard of care applicable in each state is essential (1) to decide whether, in fact, a conflict of laws exists, and (2) in the event such a conflict is found to exist, to weigh the competing state interests and policies for the purpose of deciding, as a matter of choice-of-law, which state's law of defamation should be applied to this controversy.


 A brief excursus into First Amendment defamation doctrine is necessary to provide a backdrop against which we must consider the unsettled condition of Pennsylvania and New York defamation law and attempt to divine the standard of liability each of the two states would apply to Milky Way's actions and/or non-actions. The interplay of the common law of defamation and ...

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