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WEINSTEIN v. BULLICK

June 14, 1993

SARAH WEINSTEIN
v.
RICHARD BULLICK and CBS, INC. d/b/a WCAU-TV



The opinion of the court was delivered by: BY THE COURT; JAMES T. GILES

 GILES, J.

 June 14, 1993

 Plaintiff brings claims against defendants for defamation, invasion of privacy, and intentional infliction of emotional distress. Jurisdiction is based upon diversity of citizenship and the case is governed by Pennsylvania law. Defendants have filed motions for summary judgment. For the reasons stated below, both motions are granted in part and denied in part.

 I. FACTUAL AND PROCEDURAL BACKGROUND

 The complaint alleges that Sarah Weinstein ("Weinstein") was abducted in November 1991 from a street in the City of Philadelphia by an unknown assailant who thereafter sexually assaulted her. Following her release by her abductor, plaintiff complained to the Philadelphia Police Department, giving officers of the Sex Crimes Unit a detailed description of the assault in a recorded interview.

 Richard Bullick ("Bullick") was commanding officer of the Sex Crimes Unit at the time of the above described events. In an on-camera interview with reporters from WCAU-TV, Bullick made statements which Weinstein alleges defamed her. She further alleges that Bullick knew that his statements were improper, erroneous, misleading, untrue and defamatory. WCAU-TV broadcasted Bullick's remarks throughout the Philadelphia area on its evening news program. Weinstein alleges that Bullick's statements were broadcast by WCAU in spite of the fact that WCAU knew or should have known that the information contained in the broadcast was erroneous, misleading, untrue, and defamatory.

 Based upon the above-described allegations, Weinstein brought the instant action against Bullick and WCAU, claiming defamation, see Complaint Count I, invasion of privacy by casting her in a false light, see Count II, and intentional infliction of emotional distress, see Count III. Defendants have moved to dismiss the complaint, or in the alternative, for summary judgment. In an Order dated February 8, 1993, the court informed the parties that it would consider defendants' motions to be for summary judgment, and gave plaintiff time to file additional evidence in opposition to defendants' motions. See Fed.R.Civ.P. 12(b) (if matters outside the pleading are submitted with 12(b)(6) motion, the motion shall be treated as Rule 56 motion, and parties given reasonable opportunity to present pertinent material). Weinstein filed several additional evidentiary items, and we now consider the motions.

 II. STANDARD FOR SUMMARY JUDGMENT

 Summary judgment is to be granted only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Where, as here, the non-moving party has the burden of proof at trial, the movant need not produce evidence negating the non-movant's case. Instead, the moving party need only demonstrate that there is a lack of any evidence to support the non-movant's claim. Celotex Corp. v. Catrett, 477 U.S. 317, 323-25, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Once the movant satisfies this initial burden, the non-movant cannot rest solely upon the allegations of her pleadings. Fed.R.Civ.P. 56(e). Instead, she must demonstrate that there is sufficient evidence for a jury to return a verdict in her favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). The court must determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id., 477 U.S. at 251-52. With these general considerations in mind, we will examine each count of the complaint.

 III. DEFAMATION

 Under Pennsylvania law, a plaintiff in a defamation action has the burden of proving: (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. 42 Pa.C.S. § 8343(a); U.S. Healthcare, Inc. v. Blue Cross of Greater Philadelphia, 898 F.2d 914, 923 (3d Cir. 1990), cert. denied, 498 U.S. 816, 112 L. Ed. 2d 33, 111 S. Ct. 58 (1990); Restatement (Second) of Torts § 613. Defendants argue that the statements by Bullick were not defamatory because they were merely expressions of opinion. Defendants also assert that, even if the statements were defamatory, plaintiff cannot establish that they applied to her. Because there is a genuine issue of material fact with respect to each of these contentions, the motions for summary judgment on the defamation claim will be denied.

 A. The Defamatory Character of the Publication

 The threshold question in a defamation action is whether the publication is capable of defamatory meaning. Whether a broadcast can be understood as defamatory is for the court to decide. Baker v. Lafayette College, 516 Pa. 291, 532 A.2d 399, 402 (1987); Steaks Unlimited, Inc. v. Deaner, 623 F.2d 264, 270 (3d Cir. 1980); Corabi v. Curtis Pub. Co., 441 Pa. 432, 442, 273 A.2d 899, 904 (1971); Restatement (Second) of Torts § 614(1). If the court determines that a statement could be construed as defamatory, it is for the jury to determine if it was so understood by the recipient. Corabi, 441 Pa. at 442; Redco Corp. v. CBS, Inc., 758 F.2d 970, 971 (3d Cir. 1985), cert. denied, 474 U.S. 843, 88 L. Ed. 2d 107, 106 S. Ct. 131 (1985); Restatement (Second) of Torts § 614(2).

 "A communication is defamatory if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him." Corabi, 441 Pa. at 442, 273 A.2d at 904 (quoting Cosgrove Studio & Camera Shop, Inc. v. Pane, 408 Pa. 314, 318, 182 A.2d 751, 753 (1962)); accord, Steaks Unlimited, 623 F.2d at 270; Restatement (Second) of Torts § 559. In determining whether a statement is capable of defamatory meaning, the court must look to "the effect that it is fairly calculated to produce, the impression it would naturally engender, in the minds of the average persons among whom it is intended to circulate." Baker, 532 A.2d at 402; accord Corabi, 441 Pa. at 447. The allegedly defamatory statement must be reviewed in the context of the entire broadcast. Pierce v. Capital Cities Communications, Inc. 576 F.2d 495, 502 (3d Cir. 1978), cert. denied, 439 U.S. 861, 58 L. Ed. 2d 170, 99 S. Ct. 181 (1978); Corabi, 441 Pa. at 444-45, 273 A.2d at 906; Restatement (Second) of Torts § 563, Comment d. "The words must be given by judges and juries the same signification that other people are likely to attribute to them." Corabi, 441 Pa. at 447, 273 A.2d at 907.

 Defendants argue that Bullick's statements are not capable of defamatory meaning because they are merely expressions of opinion. It is true that "opinion without more does not create a cause of action in libel." Baker, 532 A.2d at 402; accord Restatement (Second) of Torts § 566. The protection of "pure" opinion has a Constitutional basis:

 
Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas.

 Gertz v. Robert Welch, Inc., 418 U.S. 323, 339-40, 94 S. Ct. 2997, 41 L. Ed. 2d 789 (1974). However, this does not mean that there is "a wholesale defamation exception for anything that might be labeled 'opinion.' . . . Expressions of 'opinion' may often imply an assertion of objective fact." Petula v. Mellody, 138 Pa. Commw. 411, 588 A.2d 103, 108 (1991) (quoting Milkovich v. Lorain Journal Co., 497 U.S. 1, 110 S. Ct. 2695, 111 L. Ed. 2d 1 (1990)).

 Because "expressions of 'opinion' may often imply an assertion of objective [defamatory] fact," statements of opinion are actionable if the allegedly libeled party can "demonstrate that the communicated opinion may reasonably be understood to imply the existence of undisclosed defamatory facts justifying the opinion." Baker, 532 A.2d at 402; accord, Restatement (Second) of Torts § 566. The rationale behind this rule has been succinctly explained by the third circuit:

 
An opinion which is unfounded reveals its lack of merit when the opinion-holder discloses the factual basis for the idea. If the disclosed facts are true and the opinion is defamatory, a listener may choose to accept or reject it on the basis of an independent evaluation of the facts. However, if an opinion is stated in a manner that implies that it draws upon unstated facts for its basis, the listener is unable to make an evaluation of the soundness of the opinion.

 Redco, 758 F.2d at 972.

 With these general considerations in mind, we examine the content of the allegedly defamatory broadcast. It is undisputed that the following is the transcript of the November 7, 1991 broadcast in its entirety:

 
Jane Robelot : *fn1" And tonight authorities are investigating a complicated case of abduction and rape that allegedly occurred last Friday. Channel 10 News reporter Andrew Glassman has learned that while the Philadelphia Sex Crimes Division is actively investigating the case, some say they have reservations.
 
Steven Heath : There is a bright side of this whole tragic event is the fact that the victim really used her head. There could have been a textbook response to such a concern. She most certainly used it.
 
Andrew Glassman : But this was the reaction today from Captain Richard Bullick, Sex Crimes Division of the Philadelphia Police. He is investigating this case.
 
Richard Bullick : She's saying a lot of things that went on in the car -- she's driving -- she's driving 80 miles an hour having sex with the guy -- in a little Nissan. I couldn't do it, maybe she could. I don't know. And even if there was sex, that doesn't mean it was forcible sex. So it's all of these things we have to look into before we come to a conclusion. But, you know, I'm skeptical at the beginning of the investigation.
 
Andrew Glassman : You're skeptical at the beginning of this investigation? Or?
 
Richard Bullick : Both. As we are now, I'm a little skeptical about it. But until we get --
 
Andrew Glassman : Captain Bullick later phoned us to say he knew we were recording him but was uncomfortable with what he had said. He said he did not wish to appear insensitive to the alleged victim. This was his official statement on the case:
 
Richard Bullick : It's a very sensitive investigation as they all are. And we handle it just as we handle every other investigation that until it's proven to be factual or non-factual, we handle it as if it is factual.
 
Andrew Glassman : A source at Bryn Mawr College in contact with the alleged victim told us late tonight that she would be devastated if she heard that Philadelphia police did not believe her story. Officially the police department continues to seek this man in connection with the incident and Bullick says, he plans to interview the alleged victim again tomorrow. Andrew Glassman, Channel 10 News.

 Transcript of November 7, 1991 Broadcast, attached as Exhibit "1" to Motion of Defendant CBS Inc. to Dismiss the Complaint, or, in the Alternative, for Summary Judgment ("Broadcast Tr."). *fn2"

 Read in the light most favorable to the plaintiff, Bullick's statements are at least expressions of skepticism about the truthfulness of plaintiff's account of the alleged abduction and rape. While his comments may be interpreted reasonably as an expression of opinion, the content and context of the broadcast allow a reasonable listener to conclude that Bullick's skeptical opinion is based upon undisclosed defamatory facts.

 Bullick's comment that the plaintiff said "a lot of things that went on in the car," could reasonably lead a listener to believe that his skepticism about plaintiff's story was based upon more facts than those relayed in the rest of his statement or even in the rest of the broadcast as a whole. A listener to the broadcast could reasonably conclude that the police officer in charge of investigating an alleged abduction and rape knew much more about the case than the limited facts revealed in a television news broadcast. See Malia v. Monchak, 116 Pa. Commw. 484, 543 A.2d 184, 191 (1988) (reasonable for listener to infer that defendant's statement of opinion about plaintiff's job performance was based upon undisclosed defamatory facts, when statement was made after nonpublic meetings in which plaintiff's job performance was discussed).

 Thus, a reasonable listener could conclude that Bullick's statements of opinion imply the existence of undisclosed facts indicating that plaintiff engaged in consensual sexual intercourse with a stranger while driving at high speed, and then fabricated a story of abduction and rape for the police. Accordingly, we find that the broadcast is capable of a defamatory meaning. Therefore, there exists an issue of material fact as to whether the broadcast was understood by its recipients as defamatory. Summary judgment on this issue must be denied.

 B. Application of the Defamatory Statements to the Plaintiff: the "of and concerning" requirement

 Defendants argue that Weinstein cannot establish the application of the allegedly defamatory statements to her, that is, the broadcast was not "of and concerning" her, and, therefore, her defamation claim fails as a matter of law. The court disagrees.

 It is undisputed that plaintiff was not named in the allegedly defamatory broadcast. However, a defamed party need not be specifically named in a defamatory statement in order to recover, if she is pointed to by description or circumstances tending to identify her. Redco, 758 F.2d at 972; Cosgrove Studio & Camera Shop, Inc. v. Pane, 408 Pa. 314, 319, 182 A.2d 751, 753 (1962); Restatement (Second) of Torts § 564, Comment b. When the plaintiff is not named in the broadcast, the court must determine if a viewer could reasonably conclude that the broadcast referred to the plaintiff. If the court decides in the affirmative, the jury must determine if the ...


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