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filed: January 14, 1983.


No. 278 PHILADELPHIA, 1981, Appeal from an Order of the Court of Common Pleas, Civil Division, of Philadelphia County, No. 3446 March Term, 1980.


James Edwin Beasley, Philadelphia, for appellant.

David H. Marion, Philadelphia, for Field, appellee.

Gregory M. Harvey, Philadelphia, for Parry, appellee.

Hester, Wickersham and Popovich, JJ. Popovich, J., files a concurring and dissenting statement.

Author: Hester

[ 310 Pa. Super. Page 571]

This is an appeal from two Orders of the Common Pleas Court of Philadelphia dated January 9, 1981, granting summary judgment in favor of appellees Lloyd George Parry (Parry) and Field Communications (Field).*fn1 Appellant Braig filed a complaint on April 21, 1980, alleging a defamation action against Parry and Field.

[ 310 Pa. Super. Page 572]

Parry was at all times relevant to this lawsuit an Assistant District Attorney and Chief of the Police Misconduct Unit of the District Attorney's Office of Philadelphia County. Field Communications is a corporation which owns WKBS-TV, Channel 48. WKBS-TV 48 "published" a television program entitled "On Target -- The Bowe Case", which was taped on September 10, 1979, broadcast on September 23, 1979, at 11:30 p.m., and rebroadcast without change on September 29, 1979, at 10:00 a.m. Parry participated in the program representing the Police Misconduct Unit of the District Attorney's Office. The program concerned the trial of Officer Thomas Bowe, who had been charged with the murder of a 19-year-old Philadelphia resident, Cornell Warren. This trial attracted a significant amount of public debate and generated an equal amount of controversy due to the fact that there had been a number of incidents of alleged excessive use of force by police officers against blacks. Officer Daryl Bronzeill, Bowe's partner, was charged with recklessly endangering the life of Warren, as well as simple assault and aggravated assault. Both cases were prosecuted by Robert Campolongo, an Assistant District Attorney who served in the Police Misconduct Unit under the supervision of Parry.

Appellant, a Judge in the Court of Common Pleas of Philadelphia County, presided at the trial of Officer Bronzeill. The trial was aborted when appellant, on his own motion, declared a mistrial on the ground of "intentional prosecutorial misconduct". Officer Bowe was acquitted by a jury in a trial before Judge John Geisz.

The 30-minute television program at issue was moderated by Brahin Ahmaddiya, who had been serving as moderator and associate producer of the regularly scheduled weekly "On Target" programs. The "On Target" program had been presented by Channel 48 for a number of years. It was designed to provide a forum for serious discussion by knowledgeable panelists concerning minority-affairs matters of current public interest.

[ 310 Pa. Super. Page 573]

Ahmaddiya and Leon Haines, an employee of Channel 48 and producer/director of "On Target", selected the participants for the program, which was approved for broadcast by Martin Jacobs, Channel 48's manager of news and public affairs. Originally, Ahmaddiya was to have three guests on the show: Benjamin Johnson, a prominent black criminal defense attorney who had represented Cornell Warren's family, Campolongo, and Parry. Campolongo, however, could not attend. Therefore, the on-camera participants were Ahmaddiya, Johnson, and Parry. In accordance with normal station procedure, no script or list of questions was prepared in advance.

The program centered upon the prosecution of Officer Bowe. As the panelists discussed the case, Johnson was critical of the prosecutorial style of Campolongo, the Assistant District Attorney who prosecuted both cases, and was particularly critical of the decision to have Campolongo prosecute the Bowe case after the Bronzeill prosecution had been thrown out by Judge Braig for Campolongo's prosecutorial misconduct. To underscore this point, Johnson quoted a statement critical of Campolongo which had been made by Judge Braig during the Bronzeill trial. The following colloquy then occurred:

Parry: I was going to say that if you want to use Judge Braig's statement, you know, you are opening up a whole other area. In fact, it was a whole other case in terms of the presentation that was made to the court. Judge Braig is no friend of the police brutality unit. I don't care who we sent in to try that case, in my opinion, that case was going to get blown out.

Ahmaddiya: Okay, we have to ask this question --

Johnson: This is the second time, no matter which judge they have, they accuse the judge of blowing the case out.

Parry: Judge Geisz didn't blow the case out.

This colloquy took approximately thirty seconds of the thirty minute program. It came near the show's end as Ahmaddiya was preparing to summarize and close the program.

[ 310 Pa. Super. Page 574]

The videotaped program was broadcast as scheduled on September 23, 1979. A day or two later appellant telephoned Kenneth T. MacDonald, then Vice President and General Manager of Channel 48. Appellant stated that he had been told that an objectionable reference to him had been made on the On Target program which had aired the previous Sunday. Appellant said he had not seen the program and asked for a copy of the transcript. MacDonald explained that a transcript had not been made, but told appellant he could send his secretary to the station so that she could watch the program and write down any statement concerning him. Judge Braig said that he understood the program was to be rebroadcast. MacDonald acknowledged that it was scheduled to be aired again on the coming Saturday. MacDonald offered to view the program tape and call the appellant the next day.

MacDonald instructed a member of the station's crew to make a cassette tape of the program. The next day, MacDonald viewed the tape with Joseph R. Weber, the station's Program Manager. Although MacDonald did not know exactly what he was looking for, in his words, ". . . when the judge's name was brought up, we played it back a couple of times and went over it." MacDonald subsequently viewed the program by himself. On September 27, 1979, Judge Braig called MacDonald. MacDonald told Braig that he had found nothing objectionable on the tape. He then said he would have the tape cassette of the program hand-delivered to the Judge. MacDonald verified that the program was going to be rebroadcast on September 29, 1979. Instead of hand-delivering the tape, the tape was mailed. Judge Braig did not receive it until Monday, October 1, 1979.

The lower court held that the words complained of by Judge Braig are capable of a defamatory meaning.*fn2 The

[ 310 Pa. Super. Page 575]

    lower court also held that no absolute privilege protected Parry as an Assistant District Attorney and that no conditional privilege protected Field. However, the lower court entered summary judgment on behalf of both defendants on the basis of its conclusion that "as a matter of law plaintiff cannot prove actual malice against either defendant."

We first address the standard of review in this case. Recently, there has been considerable attention devoted to the standard of review applicable to a defamation action which has been disposed of by summary judgment pursuant to Pa.R.C.P. No. 1035. See Curran v. Philadelphia Newspaper, Inc., 261 Pa. Super. 118, 395 A.2d 1342 (1978), affirmed in part and reversed in part, 497 Pa. 163, 439 A.2d 652 (1981); Brophy v. Philadelphia Newspaper, Inc., 281 Pa. Super. 588, 422 A.2d 625 (1980), (petition for allowance of appeal denied). It is undisputed that, in a defamation case,

". . . summary judgment should be granted only when warranted under Pa.R.C.P. No. 1035, i.e., where the evidence viewed in the light most favorable to the non-moving party, reveals an absence of a genuine issue as to the existence of actual malice as defined in New York Times Company v. Sullivan, [376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964)]."

Id., 281 Pa. Superior at 599, 422 A.2d at 631.

Recently, the Supreme Court of Pennsylvania, in Curran v. Philadelphia Newspapers, Inc., supra, clarified the standard of review applicable to a motion for summary judgment in a defamation action. The Court stated:

"The inquiry, therefore, is whether the evidence submitted to the court on a defendant's motion for summary judgment would permit the plaintiff to meet the actual malice standard.

Summary judgment is proper 'only if the evidence then before the court is such as would warrant the granting of a defendant's point for binding instructions after trial.'

[ 310 Pa. Super. Page 576]

Justice Brennan to the Denial of Certiorari in Lorain Journal Company v. Milkovich, 449 U.S. 966, 101 S.Ct. 380, 66 L.Ed.2d 232 (1980).

We note that appellant in the instant case has argued in the lower court and preserved on appeal the contention that he is not a "public figure" within the meaning of New York Times v. Sullivan and its progeny. Although appellant concedes he is certainly an elected "public official", he, nevertheless, maintains that he is not a "public figure" and should not be required to prove actual malice on the part of the defendants, since, on September 23 and September 29, 1979, when publication was made, Bronzeill was still pending before him on post-trial motions. Therefore, the Code of Judicial Conduct would have prohibited him from publicly commenting on this case. The appellant argues that, since the underlying reasoning in New York Times v. Sullivan and its progeny is that a "public figure" has an opportunity to respond to any criticism as a result of ready access to the media, he is not a "public figure" since he was unable to respond to Parry's statements. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974); Time, Inc. v. Firestone, 424 U.S. 448, 96 S.Ct. 958, 959, 47 L.Ed.2d 154 (1976); Hutchinson v. Proxmire, supra; Wolston v. Readers Digest Associations, Inc., 443 U.S. 157, 99 S.Ct. 2701, 61 L.Ed.2d 450 (1979).

We reject this contention. In Gertz, supra, the Supreme Court rejected the previous plurality opinion in Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971), which held that the New York Times privilege extended to defamatory falsehoods relating to private persons if the statements concerned matters of general or public ...

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