Appeal from the Judgment entered August 21, 1987 in the Court of Common Pleas of Delaware County, Civil Division, No. 76-13449
Samuel E. Klein, Philadelphia, for appellant (at 2426) and appellee (at 2532).
Garland D. Cherry, Sr., Media, for appellee (at 2426) and appellant (at 2532).
Brosky, Beck and Cercone, JJ. Beck, J., concurred in result.
[ 376 Pa. Super. Page 511]
The action underlying this appeal is for defamation and is the result of an article published in The Philadelphia Inquirer (hereinafter " Inquirer ") on September 24, 1976. The Complaint was filed on October 4, 1976 by Robert E.J. Curran (hereinafter "Curran"), a former United States Attorney for the Eastern District of Pennsylvania, against Philadelphia Newspapers, Inc. (hereinafter "PNI"), publisher of the Inquirer.
After filing an answer to the complaint, PNI filed a motion for summary judgment which was granted by the trial court on March 29, 1977. On appeal by Curran to this Court, the grant of summary judgment was affirmed by an equally divided court. Curran v. Philadelphia Newspapers, Inc., 261 Pa. Super. 118, 395 A.2d 1342 (1978) (hereinafter "Curran I"). Subsequently, on December 22, 1981, the Pennsylvania Supreme Court vacated the order granting summary judgment and remanded the case for further proceedings. Curran v. Philadelphia Newspapers, Inc., 497 Pa. 163, 439 A.2d 652 (1981) (hereinafter "Curran II").
The action proceeded to trial on September 10, 1984. On September 24, 1984, the jury returned a verdict against PNI in the amounts of $350,000.00 in compensatory damages and $450,000.00 in punitive damages. PNI filed a motion for post-trial relief, in the nature of judgment non obstante verdicto (hereinafter "judgment n.o.v."), which was denied. Judgment was entered on August 21, 1987. This appeal followed.*fn1
[ 376 Pa. Super. Page 512]
In Pennsylvania, a cause of action for defamation may be brought under the Uniform Single Publication Act. 42 Pa.C.S.A. §§ 8341-8345. Among the elements which a plaintiff is required to establish are the defamatory character of the communication,*fn2 its publication by the defendant, its application to the plaintiff, the understanding by the recipient of its defamatory meaning, the understanding by the recipient of it as intended to be applied to the plaintiff, special harm resulting to the plaintiff from its publication,*fn3 and abuse of a conditionally privileged occasion. Id. § 8343.
An adjudication of a defamation case involves both state and federal law inquiries. A court must determine: "(1) whether the defendants have harmed the plaintiff's reputation within the meaning of state law; and, if so, (2) whether the First Amendment*fn4 nevertheless precludes recovery." Steaks Unlimited, Inc. v. Deaner, 623 F.2d 264, 269-70 (3d Cir.1980). When the plaintiff is a public official or figure,*fn5 he or she sustains an additional burden of proving that the defendant acted with "actual malice". This requirement was established in the seminal case New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). There the Supreme Court held:
[ 376 Pa. Super. Page 513]
The constitutional guarantees [of freedom of speech and press] require . . . a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with "actual malice" -- that is, with knowledge that it was false or with reckless disregard of whether it was false or not.
376 U.S. at 279-80, 84 S.Ct. at 726. This protection extends to false statements of fact as well as comment or opinion. Id. "Actual malice" must be proven with "clear and convincing" evidence, Bose Corporation v. Consumers Union, 466 U.S. 485, 104 S.Ct. 1949, 1965, 80 L.Ed.2d 502 (1984) (quoting New York Times, 376 U.S. at 285, 84 S.Ct. at 728), that the defendant realized that the statement was false or subjectively entertained serious doubt as to the truth of the statement. New York Times, 376 U.S. at 280, 84 S.Ct. at 710; see also Gertz v. Robert Welch, 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974). In St. Amant v. Thompson, 390 U.S. 727, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968), the Supreme Court explained the subjective nature of the "reckless disregard" standard as follows:
These cases are clear that reckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. Publishing with such doubts shows reckless disregard to the truth or falsity which demonstrates actual malice.
390 U.S. at 731, 88 S.Ct. at 1325.
The term "reckless disregard" is not amenable to one infallible definition. It is a term which is understood by considering a variety of factors in the context of an actual case. Such factors may be whether the author published a statement in the face of verifiable denials, Brown & Williamson Tobacco Corporation v. Jacobson, 827 F.2d 1119 (7th Cir.1987), cert. denied U.S. , 108 S.Ct. 1302, 99 L.Ed.2d 512 (1988), and without further investigation or
[ 376 Pa. Super. Page 514]
corroboration, where allegations were clearly serious enough to warrant some attempt at substantiation. Stickney v. Chester County Communications, Ltd., 361 Pa. Super. 166, 522 A.2d 66 (1987). Likewise, evidence of unexplained distortion or the absence of any factual basis to support an accusation may be considered in determining whether the record is sufficient to support a finding of "actual malice". Id. See also Frisk v. News Company, 361 Pa. Super. 536, 523 A.2d 347 (1986) (clear departures from acceptable journalistic procedures, including the lack of adequate prepublication investigation; the use of wholly speculative accusations and accusatory inferences; and the failure to utilize or employ effective editorial review, were sufficient to support finding of reckless disregard for the falsity of the information). See also Curtis Publishing Co. v. Butts, 388 U.S. 130, 158, 87 S.Ct. 1975, 1993, 18 L.Ed.2d 1094 (1967).
However, ill will and a desire to do harm are not alone sufficient to show malice. Henry v. Collins, 380 U.S. 356, 85 S.Ct. 992, 13 L.Ed.2d 892 (1965). Neither is falsity in and of itself sufficient to prove malice. Curran I, supra; Marcone v. Penthouse International Magazine for Men, 754 F.2d 1072, 1091 (3d Cir.1985), cert. denied, 414 U.S. 864, 106 S.Ct. 182, 88 L.Ed.2d 151 (1985) ("Although lack of truthfulness of a statement is a prerequisite to liability in a libel action, mere falsity, without more, is generally not sufficient to establish actual malice."). Mr. Justice Harlan's opinion in Curtis Publishing Co., 388 U.S. at 153, 87 S.Ct. at 1991, stated that evidence of either deliberate falsification or reckless publication "despite the publisher's awareness of probable falsity" was essential to recovery by public officials in defamation actions.
In St. Amant v. Thompson, supra, the Court established a subjective standard for determining "actual malice" where it said:
Reckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient
[ 376 Pa. Super. Page 515]
evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication.
390 U.S. at 731, 88 S.Ct. at 1325 (emphasis added).
In discussing this strict standard of proof, the courts have recognized that the reckless disregard standard may permit recovery in fewer situations than would a rule that publishers must satisfy the standard of the reasonable man or the prudent publisher and may in fact protect false publications. Nevertheless, the courts have responded:
But New York Times and succeeding cases have emphasized that the stake of the people in public business and the conduct of public officials is so great that neither the defense of truth nor the standard of ordinary care would protect against self-censorship and thus adequately implement First Amendment policies. Neither lies nor false communications serve the ends of the First Amendment, and no one suggests their desirability or further proliferation. But to insure the ascertainment and publication of the truth about public affairs, it is essential that the First Amendment protect some erroneous publications as well as true ones. We adhere to this view and to the line which our cases have drawn between false communications which are protected and those which are not.
The defendant in a defamation action brought by a public official cannot, however, automatically insure a favorable verdict by testifying that he published with a belief that the statements were true. The finder of fact must determine whether the publication was indeed made in good faith. Professions of good faith will be unlikely to prove persuasive, for example, where a story is fabricated by the defendant, is the product of his imagination, or is based wholly on an unverified anonymous telephone call. Nor will they be likely to prevail when the publisher's allegations are so inherently improbable that only a reckless man would have put them into circulation. Likewise, recklessness may be found where there are obvious reasons
[ 376 Pa. Super. Page 516]
to doubt the veracity of the informant or the accuracy of his report.
St. Amant, 390 U.S. at 731-32, 88 S.Ct. at 1326 (footnote omitted).
Appellant PNI contends that the court erred in denying its motions for judgment n.o.v. or a new trial. The general standard of review in addressing these issues is well-settled. "A judgment notwithstanding the verdict should be entered only in a clear case, when the facts are such that no two reasonable persons could fail to agree that the verdict was improper; any doubts should be resolved in favor of the verdict winner." Geyer v. Steinbronn, 351 Pa. Super. 536, 549, 506 A.2d 901, 908 (1986) (citing cases). On appeal from the trial court's refusal of a motion for judgment n.o.v., "the sole duty of the appellate court is to decide whether there was sufficient competent evidence to sustain the verdict, granting the verdict winner . . . the benefit of every favorable inference reasonably to be drawn from the evidence." Geyer, 351 Pa. Super. at 549, 506 A.2d at 908.
When reviewing the record to determine whether plaintiff presented sufficient evidence to support the jury's finding of "actual malice", however,
[O]ur task is to make an independent examination of the evidence adduced to determine if it was constitutionally sufficient to warrant a finding by the jury of actual malice, and in so doing, the evidence, together with all reasonable inferences therefrom, must be considered in the light most favorable to the verdict winner, here the plaintiff. If it is not sufficient, [the defendant] is entitled to judgment n.o.v.
[ 376 Pa. Super. Page 517]
Sprague v. Walter, 357 Pa. Super. 570, 589-90, 516 A.2d 706, 716-17 (1986), affirmed 518 Pa. 425, 543 A.2d 1078 (1988) (quoting Corabi v. Curtis Publishing Co., 441 Pa. at 458, 273 A.2d at 912) (footnote omitted). While this standard of appellate review was first espoused in New York Times v. Sullivan, supra, the rationale for an independent appellate review was fully set forth in Bose Corporation v. Page 517} Consumers Union, supra. In Bose, the Supreme Court explained that a finding of "actual malice" is not purely a finding of fact but, rather, it may be ...