The opinion of the court was delivered by: STEWART DALZELL
American Media Operations, Inc. has moved to dismiss this libel complaint under Fed. R. Civ. P. 12(b)(6) or, in the alternative, for summary judgment, because it contends this action is time barred under the Uniform Single Publication Act, codified at 42 Pa. Con. Stat. Ann. § 8341. Because the parties have supplemented their briefs with affidavits and a deposition transcript, we shall treat the motion as one for summary judgment. Fed R. Civ. P. 12(b). For the reasons that follow, we shall grant the motion.
A. The Article in Question
Defendant publishes a weekly newspaper called Star,
which some courts with justice have characterized as a tabloid.
Rosalie Bradford and her husband, Robert S. Bradford, allege that Star published a libelous article (appended to the complaint as Exhibit A), accompanied by three photographs, about them.
The Star story further recounts how Mrs. Bradford subsequently lost nine hundred pounds, making her the "world's top slimmer", after receiving an inspirational phone call from "diet guru", Richard Simmons. As she lost weight, the report states that Mrs. Bradford allegedly resumed sexual relations with her husband. The article claims that Mrs. Bradford had operations to remove the loose skin as she lost weight.
The article is composed almost entirely of quotes attributed to Mrs. Bradford (the story contains only ten unquoted sentences), and includes photographs of her both before and after she lost weight, as well as a photograph of her with Simmons. The Bradfords contend that no one from Star ever interviewed Mrs. Bradford for the article, and they take particular offense at six quotes, which they contend are "false and untrue and greatly upset" them.
On September 6, 1994, the Bradfords filed a praecipe for writ of summons against Enquirer/Star, Inc. in the Court of Common Pleas of Philadelphia County, Pennsylvania.
Notice of Removal, P 1 & Exhibit A. Enquirer/Star, Inc. was served on October 12, 1994 and removed the action to this Court on October 27, 1994, based upon our diversity jurisdiction. Id., PP 2, 4. The Bradfords filed their three-count complaint about two weeks after removal.
Counts I and II of the complaint are claims by Rosalie Bradford for libel and invasion of privacy, respectively. Count III is a claim by Robert Bradford for invasion of privacy.
B. Distribution of the Newspaper
The Star edition containing the allegedly defamatory article, the 36th issue that year, has a cover date
of September 7, 1993. Complaint, P 9. American Media Operations, Inc. sold 425,418 subscription copies of its September 7, 1993 issue of Star and 2,577,817 retail copies, for a total paid circulation of 3,003,235. December 31, 1993 Audit Bureau of Circulations Statement, appended to Motion as Exhibit B.
All of the writing and editing for each issue of Star is completed during the week before that issue is placed on the newsstands for purchase. Smith Aff., P 2. The final copy is delivered to regional printing presses located throughout the country. Id. Copies of Star that are distributed throughout Bucks County, Pennsylvania and the surrounding area are printed by Quebecor Printing in Atglen, Pennsylvania. Id., P 10. Printing is usually completed by Friday of each week, at which time copies are ready to be delivered to the public. Id., P 2. For the September 7, 1993 issue, Quebecor began printing on Wednesday, August 25 and finished on Friday, August 27, 1993. Id., P 10.
Subscription copies are shipped by United States Postal Service second class mail from the regional printing presses directly to the customer. Id., P 3. Subscription copies are delivered to the Postal Service the Friday before the week that single copy sales are made available to the public. Since the Postal Service is said to take, on average, between one to four days to deliver the issues, most of the subscribers receive their copies by Tuesday each week. Id. On Thursday, August 26, 1993, Quebecor shipped 53,798 subscription copies of the September 7, 1993 edition to a mailing service, Advertiser Mailers, Inc., in Trenton, New Jersey, who, in turn, delivered the copies to the United States Postal Service in Trenton the following day. Id., P 11.
A small number of single copy issues are distributed by mail galley wholesalers who accept orders and returns from newsstand proprietors but do not distribute copies of Star themselves. Id., P 6. Mail galley wholesalers deliver their copies of Star to the newsstands through the mail in the same manner as individual subscribers. Id. For example, TV Readers Service, a mail gallery wholesaler in Lenoir City, Tennessee, that services a small number of newsstands in Bucks County, mailed three copies of the September 7, 1993 issue to the Sellersville Pharmacy, which, applying the four-day delivery time, should have received them on Monday August 30, or Tuesday, August 31, 1993 at the latest. Id., P 15.
Most single copy issues are shipped from the printing presses to regional wholesalers, who then deliver them to newsstands and retail stores. Id., P 5. The wholesalers receive their copies of Star just prior to the week that they are put on the newsstand, and actually deliver the papers on the following Monday and Tuesday. Id. In the Bucks County area, Quebecor Printing delivers the papers to Highway Film Delivery, who then transports them to three different wholesale distributors. Id., P 12. On Friday, August 27, 1993, Highway Film Delivery transported 70,100 copies of the September 7, 1993 Star issue to Levy United News Co., 10,300 copies to Valley Distributor, Inc. and 9,500 copies to Allentown News Agency, Inc. Id., P 13; Motion Exhibits D, E and F.
Jim Smolen, the Director of Operations at Levy United News Co., averred in his affidavit and testified at his deposition that Highway Film Delivery transported copies of the September 7 edition to Levy's warehouse on Friday, August 27, 1993. Affidavit of Jim Smolen ("Smolen Aff."), appended to Motion, PP 3-4; January 30, 1995 Deposition of James Smolen ("Smolen Dep."), appended to Response at 9. Levy employees "picked" (separated and bundled) the copies that were destined for each newsstand and delivered them to various newsstands in the area from Monday, August 30 to Wednesday, September 1, 1993. Smolen Dep. at 12; Smolen Aff., PP 3-4. Tom Olbrich, Vice-President of Valley Distributors Inc., and R.F. Lentz, President of Allentown News Agency, Inc., both stated in their affidavits that their companies follow nearly identical procedures. Affidavit of Tom Olbrich, appended to Motion, PP 3-4; Affidavit of R.F. Lentz, appended to Motion, PP 3-4.
The individual newsstand proprietors complete the sales process. David McCool, owner and manager of Nite Owl News located at Broad and Locust Streets in Philadelphia, confirmed that Levy United News delivers all of the copies of Star on Monday each week. Verification of David McCool ("Defendant's McCool Ver."), appended to Motion, P 2; Verification of David McCool ("Plaintiffs' McCool Ver."), appended to Response, P 2.
McCool and his staff then remove any remaining copies of Star from the newsstand and replace them with copies of the new issue. Id. Based upon this practice, McCool states that the September 7, 1993 issue of Star was available for purchase at Nite Owl News on Monday, August 30, 1993. Defendant's McCool Ver., P 3; Plaintiffs' McCool Ver., P 3. McCool goes on to add that the September 7, 1993 issue of Star remained on his stand until Tuesday, September 7 rather than Monday, September 6, 1993 because September 6 was Labor Day and Levy United News did not deliver on the holiday. Plaintiffs' McCool Ver., PP 4, 6. Stanley Schiffman, President of Bradd Alan Bookstores, Inc. located at 30th Street Station in Philadelphia, Richard Singer, franchisee of a 7-Eleven in New Britain, Bucks County, and Jaimini Patel, owner of a 7-Eleven in Doylestown, Bucks County all verified (much as McCool did) that the September 7, 1993 issue was available for purchase by Tuesday, August 31, 1993, at the latest. McCool has further verified that the issue in question remained on his newsstand until September 7, 1993. Plaintiff's McCool Ver., P 7.
Thus, American Media Operations, Inc. has introduced uncontroverted evidence, in the form of affidavits, that the September 7, 1993 edition of Star was made generally available to the Pennsylvania public on August 31, 1993, or, at the latest, September 1, 1993. American Media Operations contends that it follows as a logical conclusion that the Bradford's suit is barred by the applicable one-year statute of limitations since plaintiffs did not file suit until September 6, 1994. The Bradfords agree that the September 7, 1993 Star issue "was available to the public from August 30, 1993, at the earliest", Response at 2, and have also introduced undisputed evidence that this issue remained available on at least some newsstands for purchase until, at least, its retrieval (or disposal) on September 7, 1993.
In opposing this motion, the Bradfords advance three arguments why their suit should not be time-barred. First, the plaintiffs argue that they can choose any single publication of the September 7, 1993 edition of Star as the accrual date of the action. Second, they claim that the discovery rule applies to toll the running of the statute of limitations until the Bradfords first learned, or should have learned, about the offending article.
Finally, they contend that the cover date was misleading and they reasonably relied on it, and thus the defendant should be estopped from asserting a statute of limitations defense as a result.
We believe that this case is governed by the Pennsylvania Supreme Court's 1970 decision in Dominiak v. Nat'l Enquirer, 439 Pa. 222, 266 A.2d 626 (1970). As we construe that case, the Bradfords may select the last publication date of the September 7, 1993 edition of Star in Pennsylvania to support their claims of libel and invasion of privacy. Since the last publication date ...