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 was September 1, 1993, we shall grant American Media Operations' motion for summary judgment.
A. Choice of Law
As a federal court in a diversity case, we must of course apply the substantive law of the state which encompasses our district, Erie R.R. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938), including the conflict of law rules of the forum state, Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 61 S. Ct. 1020, 85 L. Ed. 1477 (1941), here, Pennsylvania. Our Erie duty requires us to predict how the Pennsylvania Supreme Court would decide the matters before us. Kiewit Eastern Co. v. L & R Constr. Co., 44 F.3d 1194, 1201 n.16 (3d Cir. 1995). When the Pennsylvania Supreme Court has not addressed a issue, we may look to decisions of the intermediate courts for guidance. Id. ; Borse v. Piece Goods Shop, Inc., 963 F.2d 611, 614 (3d Cir. 1992). As the parties recognize, Pennsylvania law applies to this action because the Bradfords reside in the Commonwealth and any harm to their reputation that may have occurred as a result of the Star publication would largely center in that state. Marcone v. Penthouse Int'l Magazine for Men, 754 F.2d 1072, 1077 (3d Cir.), cert. denied, 474 U.S. 864, 88 L. Ed. 2d 151, 106 S. Ct. 182, and reh'g denied, 474 U.S. 1014, 88 L. Ed. 2d 477, 106 S. Ct. 548 (1985). In Pennsylvania, statutes of limitations are part of the substantive law. Menichini v. Grant, 995 F.2d 1224, 1228 n.2 (3d Cir. 1993).
B. Statute of Limitations
Pennsylvania has a one year statute of limitations for libel and invasion of privacy suits. 42 Pa. Cons. Stat. Ann. § 5523(1) (Supp. 1994). Under the method of computing periods of limitation generally, "the time within which a matter must be commenced under this chapter shall be computed . . . from the time the cause of action accrued . . . ." 42 Pa. Cons. Stat. Ann. § 5502(a).
The general rule at common law was that "each communication of the same defamatory matter by the same defamer, whether to a new person or to the same person, is a separate and distinct publication, for which a separate cause of action arises." Restatement (Second) of Torts § 577A, Comment a (1977), cited in Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 774 n.3, 104 S. Ct. 1473, 1478 n.3, 79 L. Ed. 2d 790 (1984); see also, 50 Am. Jur. 2d Libel and Slander § 153 (1970); Gaetano v. Sharon Herald Co., 426 Pa. 179, 184, 231 A.2d 753, 756 (1967) ("Under the English and American common law rule, every sale of a single copy of a newspaper was a distinct publication, giving rise to a separate cause of action."). This "multiple publication" rule appears to have originated in the middle of the last century in the English case of Duke of Brunswick v. Harmer, 14 Q.B. 185, 117 Eng. Rep. 75 (1849), in which the court held that each sale of a newspaper was a separate publication to a new person, for which a separate cause of action would lie. Restatement (Second) of Torts § 577A Note (1977). As the Restatement (Second) recognizes, "this may or may not have been appropriate in 1849, with small communities and limited circulation." Id.
With the advent of mass media, however, the common law became anachronistic because a single defamatory statement could give rise to millions of causes of action. Harper, James & Gray, The Law of Torts § 5.16 (2d ed. 1986). One newspaper article or television show could produce multiple claims and thus put a massive strain on judicial dockets. Accordingly, many states adapted their common law through the courts with the development of the single publication rule, whereby only one action for damages could be maintained for any single publication of a defamatory statement, regardless of the number of copies in existence. Id. ; Andrea G. Nadel, Annotation, What Constitutes "Single Publication" Within Meaning of Single Publication Rule Affecting Action for Libel and Slander, Violation of Privacy, or Similar Torts, 41 A.L.R.4th 541 § 2 (1985).
Pennsylvania's General Assembly, on the other hand, joined six of its sister states
in enacting a form of the Uniform Single Publication Act. Pennsylvania's version of that Act provides, in relevant part:
No person shall have more than one cause of action for damages for libel or slander, or invasion of privacy, or any other tort founded upon any single publication, or exhibition, or utterance, such as any one edition of a newspaper, or book, or magazine, or any one presentation to an audience, or any one broadcast over radio or television, or any one exhibition of a motion picture. Recovery in any action shall include all damages for any such tort suffered by the plaintiff in all jurisdictions.