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EARL T. BOBB v. EUGENE KRAYBILL (07/16/86)

filed: July 16, 1986.

EARL T. BOBB, APPELLANT,
v.
EUGENE KRAYBILL, INDIVIDUALLY AND ALSO IN HIS CAPACITY AS AN AGENT, SERVANT AND EMPLOYEE OF LANCASTER NEWSPAPERS, INC., T/D/B/A THE INTELLIGENCER JOURNAL, FREDERICK CUSICK, INDIVIDUALLY AND ALSO IN HIS CAPACITY AS AN AGENT, SERVANT AND EMPLOYEE OF PHILADELPHIA NEWSPAPERS, INC., T/D/B/A PHILADELPHIA INQUIRER, PHILADELPHIA NEWSPAPERS, INC., T/D/B/A PHILADELPHIA INQUIRER, LANCASTER NEWSPAPERS, INC., T/D/B/A INTELLIGENCER JOURNAL



Appeal from the Order of the Court of Common Pleas, Dauphin County, Civil Division, at No. 1820 S 1983.

COUNSEL

Spero T. Lappas, Harrisburg, for appellant.

George C. Werner, Jr., Lancaster, for Kraybill, appellee.

Kerry L. Adams, Williamsport, for Cusick, appellee.

Wickersham, Brosky and Watkins, JJ.

Author: Brosky

[ 354 Pa. Super. Page 362]

This is an appeal from the order granting appellees' motions for summary judgment in this defamation action. The sole issue for our determination is whether the trial court erred in finding no genuine issue of material fact as to the truthfulness of the articles published. The trial court found that appellant did not and could not contest the substantial truth of the articles and, therefore, granted appellees' motions for summary judgment.*fn1 We agree with the trial court and, accordingly, affirm its order.

The record reveals that appellant was a marketing manager with the Pennsylvania Bureau of State Lotteries. In the course of his employment with the Bureau, appellant came into contact with Bernie Alimenti, a tobacco store owner and authorized lottery ticket sales agent.

In late December 1982, appellant told Alimenti that he needed $1,000.00 for a short term and asked if Alimenti could help. Appellant offered Alimenti an undated, personal

[ 354 Pa. Super. Page 363]

    check as collateral for what appellant intended to be a personal loan. Alimenti, fearing the loss of his lucrative lottery machine if he refused appellant's request, was uneasy about the encounter and contacted the local police. The police, in turn, alerted agents of the Attorney General's Office about appellant's request. The agents outfitted Alimenti with a recording device and a second meeting with appellant was arranged. Alimenti, now wearing the recorder, told appellant that he did not have $1,000.00 and that the only way he could accommodate appellant's loan request was by drafting a check from his lottery "winner's account." Lottery agents are required to maintain two lottery bank accounts, one of which is a "float" account from which winners can be paid. Appellant was aware that as a sales agent, Alimenti could withdraw funds from the float account. The two men agreed to the transaction and Alimenti wrote a check for $1,000.00 which they presented at a nearby bank. While cashing the check, Alimenti stated to the teller, "this man's a winner." Appellant took the cash and departed. Shortly thereafter, appellant was fired from his job for "misrepresentation of [his] position with the Bureau of Lotteries" in connection with the loan transaction.

Appellant did repay the $1,000.00 on January 12, 1983 when Alimenti deposited appellant's personal check. The Attorney General's Office declined to prosecute appellant for lack of a clearly defined prosecutable offense.

Reports of these events appeared in the February 5th, 1983 edition of the Lancaster Intelligencer Journal and the February 7th, 1983 edition of the Philadelphia Inquirer. The articles were authored by appellees Kraybill and Cusick respectively. Appellant filed the instant action in May 1983. Finding no genuine issue of material fact as to the truthfulness of the ...


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