Appeal from the United States District Court for the Eastern District of Pennsylvania
Before: ALDISERT, HIGGINBOTHAM and SLOVITER, Circuit Judges
This is an appeal in a diversity action for defamation (Count I) and trespass (Count II), arising out of the production and publication of a news report aired by the defendant, CBS, Inc. (CBS), through WCAU-TV, a station operated by CBS in Philadelphia. The district court granted CBS's motion for summary judgment as to Count II and, at the close of all the evidence, directed a verdict for CBS as to Count I. Plaintiff appeals from both orders of the district court, as well as from the court's denial of plaintiff's motion to compel production of the notes and tapes of the reporter who prepared the broadcast.
Plaintiff, Amrit Lal, a professor of political science at Cheyney State College, owns several houses in West Chester, Pennsylvania. The house located at 217 East Nield Street (Nield Street house) was leased in March 1980 to five students attending West Chester State College. About March 9, 1980 Lal learned that Ellen Sands, editor of the Quad, the student newspaper at West Chester State College, was preparing to publish a story in the March 18 issue about conditions at properties Lal owned in West Chester. On March 17, 1980 Lal filed suit in the court of Common Pleas of Chester County against Sands, West Chester State College, and others, seeking, among other things, to enjoin publication of the article until he had an opportunity to review and respond to it. At a hearing on March 21, 1980, which lasted only a few minutes, the court granted Lal's request to withdraw his petition for an injunction as moot because the Quad article had been published as scheduled on March 18, three days earlier.
Roseanne Cerra, a news reporter for WCAU-TV, and a WCAU-TV sound technician and photographer were present at the hearing. At its conclusion, they conducted videotaped interviews of Lal, Sands, and the president of West Chester State College concerning the Quad article and Lal's suit seeking prior restraint of its publication. In preparing the story, Cerra also visited the Nield Street house. After receiving permission from tenant Amy Wertz to inspect and film the interior of the house, Cerra and her crew filmed certain areas. Finally, Cerra and her two colleagues visited the offices of the Quad at West Chester State College and filmed the staff at work there. That evening, Cerra's report was aired during the 5:30 p.m. edition of WCAU-TV's news telecast. The report included a statement, attributed to the tenants, that "their many complaints of leaking roofs, faulty wiring and other eyesores were never answered." The video portion of the report shown simultaneously with this statment contained views of the house, in particular, a water-stained first-floor ceiling, an unshaded electric light bulb suspended from the ceiling, and exposed insulation on the back porch of the house.
In Count I of his complaint Lal contends that the broadcast was false and known by CBS to be false, and that the purpose and effect of the broadcast was to portray him as a slumlord. In particular, Lal maintains that the house had neither a leaking roof nor faulty wiring on the date of the broadcast. CBS replies that its broadcast came within the "fair report" privilege, a recognized common law privilege, accepted as well by the Pennsylvania courts, for reports on judicial proceedings and other official action. Under this privilege, the news media may publish accounts of judicial proceedings even when the report contains defamatory matter. CBS concedes that the fair report privilege is not absolute, however, and may be lost if the story is not fair and accurate or the defamatory material is published solely to cause harm to the person defamed. CBS argues it was entitled to the privilege because the news report fairly and accurately summarized the proceedings held on Lal's petition for preliminary injunction. Lal, on the other hand, argues that CBS exceeded the scope of the privilege by including in the news report matter that was extraneous to the judicial proceedings, especially the videotapes of the house. Lal maintains that the privilege is lost because the juxtaposition of the videotapes with Cerra's oral summary of the judicial proceeding destroyed the objectivity of the broadcast.
In Count II Lal contends that the entry by Cerra and the two other WCAU-TV employees into the Nield Street house was unauthorized and constitutes a trespass. CBS does not dispute that Lal's permission to enter the property was never obtained. However, the district court found that Cerra and her crew entered with the permission of the tenant in possession of the property, and granted CBS's motion for summary judgment on the trespass count. Lal v. CBS, Inc., 551 F. Supp. 356 (E.D. Pa. 1982).
Finally, Lal contests the district court's denial of his motion to compel discovery pursuant to Fed. R. Civ. P. 37 of Cerra's notes and tapes related to the March 21, 1980 news report on the ground that the material sought was privileged under Pennsylvania's shield statute, 42 Pa. Cons. Stat. Ann. § 5942 (Purdon 1982). Lal v. CBS, Inc., 551 F. Supp. 364 (E.D. Pa. 1982).
We look to Pennsylvania law to determine if CBS" broadcast fell within the scope of the common law "fair report" privilege as a report of a judicial proceeding. The Pennsylvania Supreme Court has recognized that "[i]f the . . . account is fair, accurate and complete, and not published solely for the purpose of causing harm to the person defamed, it is privileged and no responsibility attaches, even though information contained therein is false or inaccurate." Sciandra v. Lynett, 409 Pa. ...