The opinion of the court was delivered by: BRODERICK
This diversity defamation action is before the Court on the motions of defendants CBS, Inc., (CBS), operator of WCAU-TV, Channel 10 in Philadelphia, and Capital Cities Communications, Inc. (Capital Cities), operator of WPVI-TV, Channel 6 in Philadelphia, for summary judgment pursuant to Fed.R.Civ.P. 56. Plaintiff Jack Williams, Jr. alleges that on or about June 11, 1979 defendants defamed him by broadcasting television news reports which showed plaintiff in handcuffs being led by Philadelphia police officers to a police van, while reporting that a bank had been robbed nearby. Plaintiff contends that the broadcasts were intended to convey the meaning and were understood to mean that plaintiff was an apprehended bank robber. Plaintiff sets forth counts of defamation, intentional infliction of emotional distress, and interference with prospective contractual relations and seeks compensatory and punitive damages in excess of $10,000. For the reasons which follow, summary judgment will be entered for defendants on all of plaintiff's claims.
The following facts are undisputed. On June 11, 1979 at about 9:40 a.m., a branch office of the Philadelphia Savings Fund Society (PSFS) located in the Roxborough section of Philadelphia was robbed. A witness reported to police that two men emerged from the bank and escaped in an automobile. This automobile was abandoned at the intersection of Midvale Avenue and Conrad-Warden Streets in the adjoining East Falls section of Philadelphia, and three men jumped out and fled. Two of the men, Ronald Lewis and Joseph Wise, were apprehended on foot near this intersection about twenty minutes after the bank robbery. Police received reports that the third man had boarded a bus, and apprehended the man, Ronald Brown, on a westbound Route K bus a few minutes later. Arrest reports were made and complaints sworn against Ronald Lewis, Joseph Wise and Ronald Brown the same day.
Both defendants broadcast television news reports of the robbery and the ensuing police action, which included videotapes of the police apprehending the suspects in the robbery. The reports of defendant CBS were broadcast on Channel 10 (WCAU-TV) during the 6:00 p.m. and 11:00 p.m. newscasts on June 11, 1979. Defendant Capital Cities broadcast reports the same day on Channel 6 (WPVI-TV) on newscasts at 12:00 Noon, 6:00 p.m. and 11:00 p.m. Transcripts of the Channel 6 newscasts are attached to this opinion as Appendix "A". Defendants have provided in support of their motions for summary judgment copies of the video portions of the broadcasts, which were viewed by the Court and the parties at the hearing on these motions. Plaintiff admitted at the hearing that the videotape provided by CBS did not picture him. Plaintiff has stated that he was pictured on the videotape provided by Capital Cities, and for the purpose of our decision of its summary judgment motion Capital Cities does not dispute that its videotape shows the plaintiff in handcuffs boarding the police van. Plaintiff's name was not mentioned, however, in any of the defendants' broadcasts.
In deciding defendants' motions for summary judgment we must determine whether any disputed issues of material fact exist which would preclude entry of judgment in defendants' favor. Hollinger v. Wagner Mining Equipment Co., 667 F.2d 402, 405 (3d Cir. 1981). Whenever defendant relies upon affidavits, depositions or answers to interrogatories, plaintiff must come forward with affidavits, depositions and answers to interrogatories sufficient to contradict defendants' showing. Adickes v. S.H. Kress and Co., 398 U.S. 144, 160-61, 90 S. Ct. 1598, 1609-10, 26 L. Ed. 2d 142 (1970); Fed.R.Civ.P. 56(e). The parties have proceeded under the assumption that Pennsylvania law applies to this case, and since plaintiff is a resident of Pennsylvania and the broadcast was produced and transmitted in Pennsylvania concerning a news event which occurred in Pennsylvania, we see no reason to disturb the parties' choice of law. See Steaks Unlimited, Inc. v. Deaner, 623 F.2d 264, 269-70 (3d Cir. 1980).
There is no genuine issue of material fact that plaintiff was not pictured on the CBS reports of the bank robbery broadcast on Channel 10 on June 11, 1979, nor was plaintiff referred to either directly or by innuendo in the audio portion of the Channel 10 telecast. Plaintiff admitted that the videotape provided by CBS at the hearing on these motions did not picture him, nor did it mention him. Plaintiff has offered no evidence to contradict the affidavits of Channel 10's assistant news director and media coordinator that the videocassette supplied the Court contains all of the on-location film concerning the bank robbery shot by CBS and that no other statements or pictures concerning the bank robbery were shown on CBS. Further, the affidavits and plaintiff's deposition testimony establish that he was taken into custody by the police at a location approximately three-quarters of a mile from the intersection of Midvale and Conrad/Warden Streets, where the CBS film depicting the apprehension of the suspects was shot.
Since there are no genuine issues of material fact and since the undisputed facts show that the plaintiff was neither pictured nor mentioned on the CBS broadcast, there is no basis for a cause of action against CBS and summary judgment will therefore be entered in favor of CBS.
Defendant Capital Cities admits for the purposes of its summary judgment motion that the plaintiff was pictured during its 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).
§ 611. Report of Official Proceeding or Public Meeting.
This provision is specifically made applicable to reports of arrests by comment (h).
h. Arrest. An arrest by an officer is an official action, and a report of the fact of the arrest or of the charge of crime made by the officer in making or returning the arrest is therefore within the conditional privilege covered by this Section . . . .
Section 611 establishes a qualified privilege only, not an absolute privilege. The immunity it offers
is forfeited if the publisher steps out of the scope of the privilege or abuses the "occasion". This can be done by exaggerated additions, or embellishments to the account. Furthermore, this qualified privilege is lost if the defamatory material is published solely for the purpose of causing harm to the person defamed.
Sciandra v. Lynett, 409 Pa. at 600, 187 A.2d at 589 (citations omitted). The burden of proving abuse of the privilege rests on the plaintiff. 42 Pa.C.S.A. § 8343(a)(7). In addition, "it is the duty of the court to declare as a matter of law that no abuse of the 'occasion of privilege' exists where the evidence adduced leads to but one conclusion." Sciandra, 409 Pa. at 606, 187 A.2d at 592 (citations omitted). See Mathis, 455 F. Supp. at 417-18.
There is no evidence in the record of this case which raises a genuine issue of material fact concerning any abuse of the privilege and preventing the Court from entering summary judgment on behalf of Capital Cities on the basis of the privilege. There is absolutely no evidence in the record to support a contention that the broadcast was made solely for the purpose of harming the plaintiff. Capital Cities has offered uncontradicted affidavits of its news director and news photographer that their purpose in producing and disseminating the broadcast on Channel 6 was to document accurately a "breaking news story" concerning the robbery, and not to injure the plaintiff. There is no evidence that anyone involved with the Channel 6 broadcast personally knew plaintiff at ...