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NICK A. FRISK v. NEWS COMPANY (09/26/86)

filed: September 26, 1986.

NICK A. FRISK, JR., AND RICARDI C. GATTO, APPELLEES,
v.
THE NEWS COMPANY, APPELLANT



Appeal from the Judgment entered in the Court of Common Pleas of Lawrence County, Civil, at No. 403 of 1979.

COUNSEL

Samuel E. Klien, Philadelphia, for appellant.

John A. Conte, Conway, for Frisk, appellee.

Scott L. Melton, Conway, for Gatto, appellee.

Del Sole,*fn* Montemuro and Popovich, JJ.

Author: Montemuro

[ 361 Pa. Super. Page 538]

This libel action arose out of the publication of two articles, on May 4 and 7, 1979, respectively, in appellant's newspaper, the New Castle News. (See Appendix).

[ 361 Pa. Super. Page 539]

Appellees' case was tried in the Court of Common Pleas of Lawrence County, before the Honorable George P. Kiester, Specially Presiding, and a jury. The trial commenced on October 24, 1984, and verdicts were rendered on November 9, 1984, in favor of appellee, Nick A. Frisk, Jr., in the amount of $100,000.00 and in favor of appellee, Ricardi C. Gatto, in the amount of $400,000.00. Subsequently, on November 10, 1984, the jury awarded punitive damages to each of the appellees in the amount of $175,000.00.

Thereafter, both appellant and appellees filed timely motions for post-trial relief. In an opinion and order dated May 20, 1985, the court below denied appellees motions for additur and delay damages, and further directed as follows:

Order

NOW, this 20th day of May, 1985, Defendant's Motion for Judgment N.O.V. is denied.

If Plaintiff, Nick A. Frisk, Jr., files a remittitur of $125,000 on the punitive damage verdict within 20 days of notice of the filing of this Order, Defendant's Motion for a New Trial is denied, and it shall be entered on the verdicts as so amended. Otherwise, Defendant's Motion for a New Trial is granted.

If Plaintiff, Ricardi C. Gatto, files with the Court within 20 days of notice of filing of this order, a remittitur of $125,000 on the punitive damage verdict, Defendant's Motion for a New Trial is denied and judgment shall be entered on the verdicts as amended.

If a remittitur by Ricardi C. Gatto is not filed, Defendant's Motion for a New Trial is granted.

On May 28, 1985, each appellee remitted his punitive damage award in excess of $50,000.00. The respective judgments against appellant were accordingly entered eo die and this timely appeal followed.

Judge Kiester ably set forth the pertinent facts underlying this action:

Nick A. Frisk, Jr., and Ricardi C. Gatto brought this libel action alleging they were defamed by front-page

[ 361 Pa. Super. Page 540]

    articles/news reports which appeared in the New Castle News, a daily newspaper published by the News Company, Defendant. In May of 1979, the time of the publications, Mr. Gatto was president of the Ellwood City Borough Council and Attorney Frisk was borough solicitor. The news reports were written by Dan Callahan, a reporter for Defendant, and they related to the 1976 zoning of property in Ellwood City owned by Attorney Frisk.

The news story was based on an interview which Reporter Dan Callahan had with Roy Meehan and Martin Kovach following a meeting of the Ellwood City Planning Commission the evening of May 3, 1979. Mr. Meehan and Mr. Kovach were members of the Planning Commission.

The news item published May 4, 1979, was titled in large letters (1/2 inch high extending in length 11 inches)

'Officials expose tampered map'

The second news item published May 7, 1979, contained a photograph of the Frisk property on Fountain Avenue. Below the picture in large print were two titles:

'Involving Frisk property'

'Three zoning maps altered'

Each of the news items clearly, indisputably infer that Mr. Gatto and Attorney Frisk in 1976 had engaged in illegally altering the Ellwood City zoning map for the benefit of the Frisk property.

Primary elections were scheduled for May 15, 1979. It is highly noteworthy that Mr. Kovach, Mr. Meehan and Mr. Gatto were candidates for city council. Mr. Gatto blamed his defeat on the news stories written by Mr. Callahan and published on May 4, 1979, and May 7, 1979, in the New Castle News.

The evidence establishes that in July, 1976 Attorney Frisk and fourteen other property owners had requested zoning changes. The requested changes were placed by borough employees on various 'working' maps to aid the

[ 361 Pa. Super. Page 541]

Commission in understanding what the applicants requested. The zoning change requested by Attorney Frisk in 1976 had been denied by the Commission and was not included in the proposed zoning map, later approved by the Commission and submitted to the Borough Council for adoption.

After reading the May 4 article, Attorney Frisk that same evening made numerous phone calls including several to Mr. Callahan and Mr. Vosburg who was the managing editor of the New Castle News. Attorney Frisk offered proof that the accusation was false. He demanded a retraction and the printing of 'his side of the story.'

Attorney Frisk had been present in the borough building the evening of May 3. He had seen Mr. Callahan. Attorney Frisk demanded an explanation from Mr. Callahan as to his reason for not asking him at that time about the truth of falsity of the accusation. Mr. Callahan agreed to meet with Mr. Frisk at the Frisk law office on Saturday, May 5, 1976 [sic], at 9 A.M. When Mr. Callahan did not appear that ...


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