broadcasts concerning the bank robbery at Noon, 6:00 p.m. and 11:00 p.m., entering a police van handcuffed and that plaintiff could be seen both from the side and then head-on. The audio portion of the Noon broadcast describes the person placed into the police van, who is not named, as a "suspect", and states that another suspect had earlier been taken into custody and the money stolen from the bank recovered. The report states that both men will be charged with the robbery but that their names have not been released pending a formal hearing. The six o'clock report briefly recounts the robbery and the chase and states that three men are in custody and two, named as Joseph Wise and Ronald Wilson, have been charged. The addresses of the two men charged are also given. The eleven o'clock report names all three men charged in the robbery, Joseph Wise, Ronald Brown and Ronald Lewis, and adds that no one was hurt in the robbery.
Capital Cities asserts that it is entitled to summary judgment because the material facts, concerning which there are no genuine issues, show that its broadcasts were fair and accurate reports of official police action and that the broadcast reports were true. Under Pennsylvania law, the fair and accurate reporting of official action taken by the police is privileged. The existence and breadth of the privilege concerning reports of official or judicial proceedings are matters of law appropriate for summary disposition. Schuster v. U.S. News and World Report, 602 F.2d 850, 855 (8th Cir. 1979); See Medico v. Time, Inc., 643 F.2d 134 (3d Cir. 1981); Mathis v. Philadelphia Newspapers, Inc., 455 F. Supp. 406 (E.D. Pa. 1978). Further, summary judgment is appropriate where the record contains no evidence from which a jury might find that a defendant abused the privilege and where there is no genuine issue of material fact as to the substantial accuracy of the report. Mathis, 455 F. Supp. at 415; Porter v. Guam Publications, Inc. 643 F.2d 615 (9th Cir. 1981); Brueggemeyer v. Associated Press, 609 F.2d 825 (5th Cir. 1980); Lambert v. Providence Journal Co., 508 F.2d 656 (1st Cir. 1975), cert. denied, 423 U.S. 828, 46 L. Ed. 2d 45, 96 S. Ct. 45 (1975); See Simonson v. United Press International, 654 F.2d 478 (7th Cir. 1981); Anderson v. Stanco Sports Library, 542 F.2d 638 (4th Cir. 1976); Dostert v. Washington Post Co., 531 F. Supp. 165 (N.D.W. Va. 1982). Cf. Marcone v. Penthouse International, Ltd., 533 F. Supp. 353, 358-59 (E.D. Pa. 1982) (sufficient factual issues raised as to substantial accuracy of report to require that case go to the jury).
In the present case there is no evidence of record from which a jury could find that defendants have abused the common-law privilege, recognized in Pennsylvania, to publish a fair and substantially accurate account of plaintiff's arrest. Further, there is no dispute over any of the facts underlying Capital Cities' claim that the broadcast was substantially accurate. Since the undisputed facts show that the broadcast was a substantially accurate account of plaintiff's arrest, summary judgment for defendants is appropriate.
The privilege to make a fair report of an official proceeding or action is set out in § 611 of the Restatement (Second) of Torts. While the Supreme Court of Pennsylvania has not yet had occasion to comment on this version of the fair report privilege, Pennsylvania courts follow the Restatement (Second) of Torts on most matters, Gilbert v. Korvette, Inc., 457 Pa. 602, 611 n. 25, 327 A.2d 94, 100 n. 25 (1974), and have endorsed the substantially similar formulation of the privilege set forth in the first Restatement. It is therefore apparent that the Supreme Court will adopt the formulation of the fair report privilege embodied in the current Restatement. Medico v. Time, Inc., 643 F.2d at 138; Mathis, 455 F. Supp. at 415; See Binder v. Triangle Publications, Inc., 442 Pa. 319, 275 A.2d 53 (1971); Purcell v. Westinghouse Broadcasting Co., 411 Pa. 167, 191 A.2d 662 (1963); Sciandra v. Lynett, 409 Pa. 595, 187 A.2d 586 (1962).
Section 611 provides:
§ 611. Report of Official Proceeding or Public Meeting.