No. 671 Philadelphia, 1981, No. 1256 Philadelphia, 1981, Consolidated Appeals from the Orders of the Court of Common Pleas of Northampton County, Civil Division - Law, Dated February 23, 1981 and March 23, 1981, at No. 755 May Term, 1978.
Robert C. Brown, Jr., Easton, George K. Keenan, Bethlehem, for appellant (at No. 671) and for appellee (at No. 1256).
J. Stephen Kreglow, Easton, for appellants (at No. 1256) and for appellees (at No. 671).
Cavanaugh, McEwen and Beck, JJ. Beck, J., files a concurring and dissenting opinion.
[ 335 Pa. Super. Page 167]
Presently before this Court are the consolidated appeals from the disposition of cross-motions for summary judgment filed by the parties to a libel action. The trial court granted the motion for partial summary judgment filed by Ronald R. Rutt, Sr., hereinafter appellant, after concluding as a matter of law that (1) the article at issue was capable of defamatory meaning, and (2) that appellant was a private figure plaintiff for purposes of the libel action. The motion of appellees, the Bethlehems' Globe Times, John Strohmeyer and James B. Gaffney, for partial summary judgment upon the issue of the burden of proof of a private figure plaintiff in a defamation suit against a media defendant was also granted, the court holding that Pennsylvania law required a private figure plaintiff to establish that the defamatory matter was published with actual malice, as that term is defined in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964).
[ 335 Pa. Super. Page 168]
We conclude that the distinguished Judge Richard D. Grifo properly determined the article to be capable of defamatory meaning and properly held that appellant was a private figure plaintiff. We are constrained, however, to reverse the entry of partial summary judgment on the issue of the burden of proof of a private figure plaintiff in a libel action.
Appellant, Ronald R. Rutt, Sr., commenced a defamation action to recover damages for the publication of an allegedly libelous article in the Bethlehems' Globe Times issue of August 29, 1977. The Bethlehems' Globe Publishing Co., John Strohmeyer, Editor, and James B. Gaffney, News Editor of the Globe Times, were named as defendants. The challenged article is an extended obituary relating to the death of Randy Lee Rutt, the son of appellant, who died as a result of a self-inflicted gunshot wound on August 28, 1977. The text of the article is set forth as follows:
A 20-year-old veteran of the U.S. Marines who served in the Mediterranean during the Lebanon crisis, was dead on arrival Saturday night at St. Luke's Hospital.
City police said Randy Lee Rutt apparently shot himself to death with a rifle belonging to his father at the home of Mr. and Mrs. Joseph Hegedus, 255 E. North St., a couple days after the victim's father asked him to leave his home at 804 Linden St.
Earlier this month the younger Rutt was discharged from military service, police said.
[ 335 Pa. Super. Page 169]
When police arrived at the Hegedus house about 7:20 p.m., the youth was found on the floor between the living room and dining room. Officers said he was still breathing when he was taken to the hospital.
Police said that a 14-year-old child in the Hegedus home told them that before the gun went off Rutt uttered that he had no friends and no one loved him.
Born in Bethlehem, he was a son of Ronald and Bernice Frey Rutt. His father is the owner of Ronn Studio & Color Laboratory, a former city policeman and was a Republican write-in candidate for mayor in the spring primary.
The victim was a member of Salem Lutheran Church.
Surviving, besides his parents, are three brothers, Ronald Jr. and Craig, at home, and Jeffrey of Bethlehem, and a paternal grandmother, Dorothy Stiles of Hellertown.
Services will be held at 2 p.m. Wednesday at the Connell Funeral Home, 245 E. Broad St. Burial will be in Memorial Park Cemetery.
Appellant alleged in his complaint that the following portion of the article contained false, malicious and defamatory matter concerning the plaintiff:
City police said Randy Lee Rutt apparently shot himself to death with a rifle belonging to his father at the home of Mr. & Mrs. Joseph Hegedus, 256 E. North St., a couple days after the victim's father asked him to leave his home at 804 Linden St.
Appellant further alleged that the article, as understood by many readers of the newspaper, related that the death of Randy Lee Rutt was a suicide caused by the lack of love or affection of appellant for his son and was a result of the action of appellant in asking his son to leave his home. Appellant averred, contrary to the article in the Globe Times: (1) that Randy Lee Rutt, following his discharge
[ 335 Pa. Super. Page 170]
from the United States Marines, returned to Bethlehem where he resided with his mother, separate and apart from appellant until the time of his death; (2) that Randy Lee Rutt was at all times following his return from the Marines on good and friendly terms with appellant; (3) that Randy Lee Rutt did not reside with appellant at 804 Linden Street at any time after his return from the service; and (4) that appellant did not ask his son to leave his home at 804 Linden Street. Appellant seeks to recover compensatory damages as a result of the publication of false and libelous statements in the article which, he alleges, resulted in his exposure to public hatred, contempt and ridicule and in the impairment of his reputation and standing in the community.
After the depositions of appellant and James Gaffney, the News Editor of the Globe Times, had been taken, counsel for appellant and counsel for appellees each presented oral motions for summary judgment to the trial judge at a pre-trial conference held on February 23, 1981. The hearing court granted the motion for summary judgment of plaintiff/appellant on the following issues: (1) that the article was capable of defamatory meaning; and (2) that the plaintiff was a private individual at the time the article was published, as opposed to a public figure, within the meaning of Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974). The motion of appellees for summary judgment upon the issue of the burden of proof of a private figure plaintiff in a defamation suit against a news media defendant was granted and the court ruled that a private figure plaintiff in Pennsylvania must prove that the defamatory matter was published with actual malice as defined in New York Times Co. v. Sullivan, supra. Appellant subsequently filed an appeal to this Court challenging the application of the actual malice standard to a private figure plaintiff in a defamation action against a media defendant.*fn1 Appellees thereafter filed a
[ 335 Pa. Super. Page 171]
petition for permission to appeal the judgments rendered in favor of appellant on the related issues, which were deemed by the court in an amended order to contain controlling questions of law as to which there were substantial grounds for a difference of opinion in accordance with 42 Pa.C.S. § 702.*fn2
II. Defamatory Character of the Article
The plaintiff in an action for defamation has the burden of proving, under Pennsylvania law, the defamatory character of the communication, its publication by the defendant, and the understanding by the recipient of its applicability to the plaintiff as well as its defamatory meaning. Section 8343 of the Judicial Code, 42 Pa.C.S. § 8343, provides:
(a) Burden of plaintiff. -- In an action for defamation, the plaintiff has the burden of proving, when the issue is properly raised:
(1) The defamatory character of the communication.
(2) Its publication by the defendant.
(3) Its application to the plaintiff.
(4) The understanding by the recipient of its defamatory meaning.
(5) The understanding by the recipient of it as intended to be applied to the plaintiff.
(6) Special harm resulting to the plaintiff from its publication.
(7) Abuse of a conditionally privileged occasion.
(b) Burden of defendant. -- In an action for defamation, the defendant has the burden of proving, when the issue is properly raised:
(1) The truth of the defamatory communication.
[ 335 Pa. Super. Page 172]
(2) The privileged character of the occasion on which it was published.
(3) The character of the subject matter of defamatory comment as of public concern.*fn3
It is the function of the trial court to determine, in the first instance, whether the communication complained of is capable of defamatory meaning. Rybas v. Wapner, 311 Pa. Super. 50, 54, 457 A.2d 108, 110 (1983); Braig v. Field Communications, 310 Pa. Super. 569, 574 n. 2, 456 A.2d 1366, 1369 n. 2 (1983). If the court determines that the communication is capable of a defamatory meaning, it then becomes the jury's function to decide whether it was so understood by those who read it. Corabi v. Curtis Publishing Co., 441 Pa. 432, 442, 273 A.2d 899, 904 (1971); Cosgrove Studio & Camera Shop, Inc. v. Pane, 408 Pa. 314, 317-18, 182 A.2d 751, 753 (1962); Dunlap v. Philadelphia Newspapers, Inc., 301 Pa. Super. 475, 482, 448 A.2d 6, 10 (1982); Brophy v. Philadelphia Newspapers, Inc., 281 Pa. Super. 588, 592, 422 A.2d 625, 628 (1980); Vitteck v. Washington Broadcasting Co., Inc., 256 Pa. Super. 427, 430, 389 A.2d 1197, 1199 (1978). See Restatement (Second) Torts, Section 614. A statement is defamatory if it tends to harm the reputation of another so as to lower him in the estimation of the community or deter third persons from associating or dealing with him. Steaks Unlimited, Inc. v. Deaner, 623 F.2d 264, 270 (3rd Cir. 1980); Marcone v. Penthouse International, Ltd., 533 F.Supp. 353, 357 (E.D.Pa. 1982); Corabi v. Curtis Publishing Co., supra 441 Pa. at 442, 273 A.2d at 904; Cosgrove Studio & Camera ...