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filed: July 2, 1982.


No. 115 Philadelphia, 1981, Appeal from the Order and Judgment of the Court of Common Pleas, Civil Action - Law of Phila. County at No. 4348 Nov. Term 1971.


Samuel E. Klein, Philadelphia, for appellant.

Milton A. Lazaroff, Philadelphia, for appellee.

Spaeth, Beck and Lipez, JJ. Beck, J., files a concurring opinion.

Author: Spaeth

[ 301 Pa. Super. Page 477]

This action for defamation was brought by appellee, a sergeant in the Philadelphia Police Department, against appellant, publisher of The Philadelphia Inquirer. It is based on an article in the Inquirer concerning police corruption. The jury awarded appellee both compensatory and punitive damages. Appellant's motion for judgment n. o. v. or new trial was denied. We have concluded that judgment n. o. v. should have been entered because appellee failed to prove that appellant published the article with "actual malice" or "reckless disregard of the truth," as required by New Page 478} York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964).*fn1 We therefore reverse.

In reviewing the denial of a motion for judgment n. o. v., we must view the evidence in the light most favorable to the verdict-winner. Only evidence supporting the verdict may be considered, with the rest being rejected. All conflicts in the evidence are to be resolved in favor of the verdict-winner, or appellee.*fn2 Kiely v. Southeastern Pennsylvania Transportation Authority, 264 Pa. Superior Ct. 578, 401 A.2d 366 (1979); Grubb v. albert Einstein Medical Center, 255 Pa. Superior Ct. 381, 387 A.2d 480 (1978). Thus viewed, the evidence was as follows:

The article at issue is introduced by a headline that runs the entire width of the Inquirer's front page and states, in one large banner, "Wide Police Corruption Revealed." Reproduced Record at 563a. Immediately beneath the headline are two smaller headlines, side-by-side, the one on the left stating, "Patrol Outside, Gambling Inside," the one on the right, "Hidden Cameras Confirm Reports of Payoff System." Two large photographs are beneath the "Patrol Outside, Gambling Inside" headline. The larger photograph, about seven inches square, shows a man placing his hand inside a police car marked "17B." The caption to this photograph reads, "Sergeant's Car 17B Stops Outside Known Gambling Location." The article itself, entitled "We Watched Gambling Spot Until Policemen Nabbed Us", begins immediately beneath the photograph of car 17B. It

[ 301 Pa. Super. Page 479]

    describes the "stake-out" conducted by two Inquirer reporters and elaborates on the meaning of the photograph as follows:

We arrived at the location at about 4 P.M. and found the streets empty except for several late model luxury cars parked in the area and one man with grey sideburns and a white shirt pacing the block in front of the rowhouse.

Later, other men talked with the older man and then entered the rowhouse.

At 5:47 P.M., car 17B drove up Wharton st. and turned left onto 36th st., directly below us. The man, who appeared to be in his late 50s or early 60s, walked out into the street, leaned on the driver's side, and reached into the squad car through an open window.

At 5:51 P.M. the car left.


We called the 17th District police station and asked who was driving car 17B that day and was told it was occupied by Sgt. Samuel Dunlap.

On Monday I and another reporter went to the 17th District headquarters to show Sgt. Dunlap the photos and to question him about his activities on the afternoon of Sept. 12.

Dunlap, a tall, thin-faced officer with a ruddy complexion, greeted the reporters and sat with them in an interrogation room.

Asked if he was driving car 17B that day, he said, "more than likely."

Asked if he could identify the man leaning into his squad car, Dunlap laughed and said, "Oh sure -- that's Hubba Hubba.


"He's the local town drunk. He's always acting like he's directing traffic. I heard he just died. Wait, I can get you his real name. We call him Hubba Hubba -- he's been picked up a million times for intoxication."

[ 301 Pa. Super. Page 480]

Dunlap then identified the man as Vincent Wileczyk, 56, of 3618 Wharton st.

Before Dunlap could be asked any more questions, he took the photographs and showed them to the acting district commander, William Scott.

Scott then motioned myself and the other reporter to his room and said, "I would appreciate if you want to talk to my policemen that you see me first.

"First of all, let's see some identification."

After showing Scott press cards, one reporter asked if Sgt. Dunlap could stay while the photographs were discussed. Scott refused and told Dunlap, "Go back out on the street."

Told that we had talked to Dunlap calmly for several minutes, Scott said, "Well, I'm sorry he did that. I wouldn't have given you any information at all regarding my personnel."

Scott refused to give any further information, but persistently asked us, "What is your purpose?"

When I said The Inquirer was investigating gambling at the Wharton street address, Scott said he had no reports of gambling at that location.

When told also that the Inquirer was investigating reports of police payoffs in the area, the captain put his arms forward touching the desk, leaned back in his chair and stood up.

"I haven't had any reports of payoffs -- Do you want to make a complaint?" Scott asked.

"No," a reporter said. "I want to talk to Dunlap or ask you about Dunlap."

Scott responded, "I'm flatly telling you I will not allow you to ask my ...

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