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F. EMMETT FITZPATRICK v. PHILADELPHIA NEWSPAPERS (12/14/89)

filed: December 14, 1989.

F. EMMETT FITZPATRICK, APPELLANT,
v.
PHILADELPHIA NEWSPAPERS, INC. AND ANTHONY LAME



Appeal from the Judgment of the Court of Common Pleas, Civil Division, of Philadelphia County, No. 927, November Term, 1975.

COUNSEL

James E. Beasley, Philadelphia, for appellant.

Frank L. Corrado, Jr., Philadelphia, for appellees.

Rowley, Popovich and Johnson, JJ.

Author: Rowley

[ 389 Pa. Super. Page 440]

On November 10, 1974, the Philadelphia Inquirer printed an article headlined "D.A. Gets Ex-Client Off Light." The article reported that appellant F. Emmett Fitzpatrick, then Philadelphia District Attorney, had recommended that Joseph Nardello, who was being sentenced for his fifth felony, be placed on probation. According to the article, U.S. Supreme Court records showed that "in 1968, while a defense attorney, Fitzpatrick represented Nardello and a co-defendant in a criminal case." Appellant subsequently instituted the present action for defamation against appellees Philadelphia Newspapers, Inc., the publisher of the Inquirer, and Inquirer reporter Anthony Lame, the writer of the allegedly defamatory article.

Two assertions lie at the heart of appellant's claim. First, appellant contends that he did not recommend probation for Nardello, but instead informed the sentencing judge

[ 389 Pa. Super. Page 441]

    that his office would have no objection to a sentence of probation and, in a phrase omitted from the Inquirer article, that "[w]e leave the matter entirely to your Honor." Second, appellant asserts that while he had once presented to the U.S. Supreme Court a legal argument that was applicable to the case of Joseph Nardello, a client of A. Charles Peruto, as well as to the case of his own client, Isadore Weisberg, he did so because the rules of the Supreme Court allowed only one lawyer to argue on behalf of the two similarly situated clients. Nardello was never his "client," appellant asserts, nor did he ever "represent" Nardello.

At the close of the trial of appellant's libel action, the jurors were supplied with a verdict sheet which asked 1) whether the November 10, 1974 article was defamatory of appellant; 2) if so, whether the article was false; 3) if the article was both defamatory and false, whether appellees published it with either actual knowledge that it was false or with subjective awareness of its probable falsity (i.e., with malice); 4) if they did, whether appellant sustained actual injury as a result of the publication of the article; and 5) if he did, what amounts of compensatory and punitive damages should be assessed. The jury answered no to the first question, thus finding in favor of appellees without having to consider the remaining questions. Post-trial motions were filed and denied, judgment has been entered on the verdict, and appellant's appeal is now before us. We affirm the judgment in favor of appellees.

Of the ten issues raised by appellant in this appeal, nine allege error on the part of the trial court. Appellant contends that the trial court erred in: 1) allowing testimony that appellant had taken the Fifth Amendment in a prior, unrelated proceeding; 2) refusing to instruct the jury that, as a matter of law, there was no attorney-client relationship between appellant and Nardello; 3) refusing to instruct the jury that the challenged article was, as a matter of law, defamatory; 4) instructing the jury that the defamatory nature of the challenged article must be proved by clear and

[ 389 Pa. Super. Page 442]

    convincing evidence; 5) instructing the jury that they were to give words "their ordinary meaning" and "not pick out and isolate particular words or phrases," thus allowing the jury to reach an incorrect conclusion regarding the existence of an "attorney-client" relationship; 6) failing to answer questions submitted by the jurors in a manner that would alleviate their evident confusion; 7) refusing to grant a new trial on the ground that defense counsel, during closing argument, compared appellant to a mentally deranged movie character; 8) refusing to instruct the jury that an adverse inference could be drawn from the failure of appellee Anthony Lame, the writer of the challenged article, to ...


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