(Wilson Depo., at 111). The Book states that the Eye Center computer scheme generated 150 valid calling card numbers for the use of the members of MOD. (Book, at 74). Defendants maintain that they obtained this figure from Paul Stira, another member of MOD. (Quittner Aff., P 22). In addition, defendants note that plaintiff did admit "getting numbers", but indicated that he did not "know if they were calling card numbers or not." (Wilson Depo., at 413-14, 419). Defendants also point to the fact that plaintiff stated at his deposition that it was possible that they had rigged his computer to dial Ladopoulos' beeper with each new calling card number. (Wilson Depo., at 423). It is also the defendants' contention that Ladopoulos had informed the authors that the MOD members had rigged plaintiff's computer in such a way. (Quittner Aff., P 22).
The record contains evidence, however, creating a genuine issue of material fact as to the veracity of the Eye Center scheme as told by the defendants in the Book. The documents upon which the defendants relied to gather information about the Eye Center scheme, as indicated in their argument with respect to the fair report privilege, do not support the statement that plaintiff and Stira obtained 150 calling card numbers. See Quittner Aff., Exhibit H, at pp. 6-7; id., Exhibit G, at pp. 10-11. Plaintiff also denied any knowledge of a place called the Eye Center, and contrary to the passage in the Book, stated that he had never obtained eyeglasses there. (Wilson Depo., at 417, 424). Furthermore, in his deposition, Ladopoulos did not endorse the statement that the MOD boys had rigged plaintiff's computer to page Ladopoulos when each new card number was obtained. (Pl. Resp., Exhibit O (Ladopoulos Depo.), at 39-40). This court cannot say that plaintiff "did not and could not sustain his burden of proving the statements false and that there is no possibility of a legally sustainable verdict in his favor." See Bobb, 354 Pa. Super. at 366, 511 A.2d at 1381 (emphasis added). The court, therefore, will deny defendants' motion on the falsity issue, with respect to the Eye Center passage.
2. Statements Relating to the Crash of the Learning Link Computer ("Passage No. 2")
Defendants also contend that the passage of the Book relating to the crash of the Learning Link is true, or substantially true. Defendants aver that the information concerning this passage was based on a conversation they had with Stira. (Quittner Aff., P 24). Stira confirmed at his deposition that the Book's rendition of the incident was accurate. (Metcalf Aff., Exhibit D, at 61). Defendants offer as further support for their position, a January 24, 1990 affidavit of Ladopoulos in which he indicates that plaintiff accessed the Learning Link computer system. (Quittner Aff., Exhibit L, at Bates-stamp 435). However, when questioned at his deposition about the crash of the Learning Link computer system, plaintiff denied any involvement in the incident and stated that he had no recollection of the purported phone call with Ladopoulos and Stira. (Wilson Depo., at 428). Sufficient evidence in the record exists, therefore, creating a genuine issue of material fact as to the veracity of the passage concerning the crash of the Learning Link computer system.
3. Statements Relating to the January, 1990 Searches of MOD Members' Homes ("Passage No. 3")
In the supplemental memorandum in support of their motion for summary judgment defendants also aver that the passage relating to the 1990 searches of the MOD members' homes is not actionable because it is substantially true. (Supp. Def. Mem. Summ. J., at 16). The court need not reach this question, however, because the court has already determined that the passage is covered by the fair report privilege, and that it cannot be said that the privilege was abused by defendants. Summary judgment is granted in defendants' favor on those grounds.
4. Statements Relating to the 2600 Meeting and the Tower Book Store Incident ("Passage No. 4")
First, defendants argue that the statements relating to the 2600 meeting and the prank phone calls to Comsec's 800 phone number are true.
(Def. Mem. Summ. J., at 40-41; Supp. Def. Mem. Summ. J., at 16-17). Defendants note that plaintiff admitted that he attended the meetings in New York. (Wilson Depo., at 431-33). Stira confirmed that he recalled seeing plaintiff at these meetings on two or three occasions. (Metcalf Aff., Exhibit D, at 18). He also confirmed the fact that several people at the meeting had placed prank calls to Comsec's 800 number, although Stira also indicated that only three people had placed the calls. Id. at 35. In plaintiff's response to the defendants' motion for summary judgment, he does not directly contest the truth of this portion of the passage. See Pl. Resp., at 46-47. In his deposition, however, upon being questioned about whether he recalled calling the Comsec line from the meetings, plaintiff responded that he did not know for certain whether he had called Comsec. (Wilson Depo., at 433). In light of the above evidence, this court concludes that plaintiff has not raised a genuine issue of material fact as to the falsity of the statement that plaintiff was involved in the Comsec incident, and summary judgment is entered in favor of defendants with respect to this portion of passage No. 4.
Second, defendants argue that the statements in this passage that relate to the Tower Book store incident are not actionable because they are substantially true. (Def. Mem. Summ. J., at 41-42). Defendants based the passage on information gathered in interviews with Stira and Eric Corley, publisher of 2600 magazine. (Quittner Aff., PP 29-30). Stira confirmed at his deposition that he had given the authors information about the Tower Books event. (Metcalf Aff., Exhibit D, at 50). In his deposition, plaintiff admitted placing a call from the Tower Books telephone (Wilson Depo., at 435), but contested the Book's account as to the fact that he coaxed a dial tone out of the receiver. (Wilson Depo., at 434). Plaintiff suggests that the device described in the Book is actually a red box, not a tone dialer as indicated. (Wilson Depo., at 437). Plaintiff further avers that a red box is an illegal device, while a tone dialer is not. Id. Plaintiff clearly contests the veracity of the incident as recounted by the defendants in the Book. Plaintiff has presented sufficient evidence to create a genuine issue of material fact as to the falsity of this passage; therefore, defendants' motion for summary judgment must be denied with respect to the Tower Books store passage.
5. Statements Relating to the Dot-Annoy Computer Program ("Passage No. 5")
Defendants have also moved for summary judgment with respect to the passage of the Book that describes the dot-annoy scheme, on the basis that the passage is true or substantially true. (Def. Mem. Summ. J., at 42-45; Supp. Def. Mem. Summ. J., at 18-19). Defendants point out that plaintiff admitted using the dot-annoy program, possibly more than one hundred times. (Wilson Depo., at 354-55). Plaintiff also admitted executing the Mr. Ed version of the program on a remote computer at least ten times, admitted that he had recorded the theme music himself, (Wilson Depo., at 453-54), and that he executed the program for his friends upon their request. (Wilson Depo., at 362, 355, 443, 455-56). At his deposition, plaintiff did not deny the fact that the MOD members had pranked someone with whom plaintiff had been friends when they were Boy Scouts. (Wilson Depo., at 456-57). This individual, Thomas Woolman, confirmed at his deposition that he had received prank telephone calls of the nature generated by the dot-annoy program, from a person whom he believed to be plaintiff, and from persons purporting to be plaintiff's friends. (Metcalf Aff., Exhibit H, at 31-38).
In the passage about the dot-annoy program, the Book also refers to Modnet, a bulletin board allegedly set up by plaintiff. (Book, at 165). On this bulletin board, the members of MOD purportedly maintained a database of personal information about other computer hackers. (Book, at 165). Defendants suggest that they learned of the existence of the bulletin board through Special Agent Harris' affidavit in support of a search warrant. (Quittner Aff., P 33). In addition, they had a computer printout that confirmed the existence of Modnet. Id. Plaintiff confirmed that he ran a Unix system called Modnet from his home. (Wilson Depo., at 323-34). This fact was also confirmed by Stira at his deposition. (Metcalf Aff., Exhibit D, at 21, 73). In addition, defendants proffer that they were informed by one of the members of MOD about the database maintained on the bulletin board which contained personal information about other hackers. (Quittner Aff., at P 34). Defendants were also informed by Stira that plaintiff had written the particular dot-annoy program at issue, and that a target of the prank was Thomas Woolman. (Quittner Aff., at P 34; Metcalf Aff., Exhibit D, at 65, 68).
Plaintiff has not presented sufficient evidence to create a genuine issue of material fact with respect to the falsity of the dot-annoy program. In support of his argument that summary judgment is not proper on this issue, plaintiff offers as evidence of the falsity of the passage, the fact that a disk was found in the possession of Stira by the Secret Service which contained the password "Woolman," thereby implicating Stira in the dot-annoy pranks. (Pl. Resp., at 47). Plaintiff concludes that such information should have made the defendants suspicious of the information they gathered about the pranks from Stira. Id. Such evidence itself, however, does not create a genuine issue of material fact as to the falsity of the dot-annoy passage. At his deposition, the plaintiff did allege that the passage about the dot-annoy program was false. For example, plaintiff denied writing the original dot-annoy program. (Wilson Depo., at 353). Plaintiff also contested several technical aspects of the passage. (Wilson Depo., at 353-62). Plaintiff contested the statement that the dot- annoy program was run through his Apple computer because he would not have wanted his phone line tied up, nor his computer used for that purpose, but that the program was run through other computers, (Wilson Depo., at 442-43); plaintiff also contested the defendants' technical analysis and description of the dot-annoy program itself, (Wilson Depo., at 445-49); and plaintiff corrected that the database of names and information about other hackers was maintained on his Unix computer, not his Apple computer, (Wilson Depo., at 449-50). Such contentions do not create genuine issue of material facts sufficient to support plaintiff's position that the passage is false. Summary judgment is, therefore, granted in defendants' favor with respect to this passage.
6. Statements Relating to the Criminal Proceedings and Wilson's Cooperation with Law Enforcement Officials ("Passage No. 8")
Defendants also have moved for summary judgment on the issue of falsity with respect to the passage relating to the criminal proceedings and plaintiff's cooperation with law enforcement officials. (Def. Mem. Summ. J., at 45-46; Supp. Def. Mem. Summ. J., at 22). Defendants offer in support of this contention the fact that plaintiff admitted in his deposition that he made trips from Pennsylvania to Manhattan to meet with representatives of the United States Attorney's Office, that he had legal representation during the time period that he was cooperating with federal officials, that he did testify in front of a grand jury, and that neither he, nor Julio Fernandez, another member of MOD, received jail sentences. (Wilson Depo., at 258, 465-68). Special Agent Harris confirmed the fact that plaintiff, indeed, cooperated with the government in the prosecution of the MOD members, and that Stira, Abene, Ladopoulos, and John Lee (the indicted members of MOD), all received jail sentences for their illegal computer activities. (Metcalf Aff., Exhibit G, at 35-40, 42-43).
Plaintiff's primary contention with this passage is that it paints him in a negative light. In his response to defendants' motion for summary judgment, plaintiff alleges that this passage is false, yet, he has adduced no evidence to support that allegation. (Pl. Resp., at 48). On the contrary, plaintiff's admissions at his deposition belie such a contention. See Wilson Depo., at 210-47, 258, 465-68. Again, the standard under which this court must analyze the present question dictates that the "non-moving party cannot rely upon conclusory allegations in its pleadings or in memoranda and briefs to establish a genuine issue of material fact," Pastore v. Bell Telephone Co. of Pennsylvania, 24 F.3d 508, 511 (3d Cir. 1994). In light of this standard, the court concludes that plaintiff has not met his burden with respect to defendants' motion for summary judgment concerning this passage, and summary judgment is granted in favor of defendants with respect to this passage.
E. Liability of Defendants
Finally, defendants maintain that they are entitled to summary judgment because there is no genuine issue of material fact with respect to the fault of the defendants. They move this court to find that they were not negligent as a matter of law. (Def. Mem. Summ. J., at 54-57; Supp. Def. Mem. Summ. J., at 23-24). Applying Pennsylvania law to this case, genuine issues of material fact exist, however, as to whether the defendants are liable for defamation under the appropriate standard of liability. In a defamation action, "negligence is a question for the jury to determine upon proper instruction. The court should not remove the question from the jury unless the facts leave no room for doubt." Dougherty v. Boyertown Times, 377 Pa. Super. 462, 481, 547 A.2d 778, 787 (1988). Moreover, because the reasonableness of a defendant's action is often in dispute, summary judgment is rarely appropriate in a negligence action. See generally, 10A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure, § 2729 (1983).
Accordingly, for all the above reasons the defendants' motion for summary judgment is GRANTED IN PART and DENIED IN PART. To the extent that the court denies the defendants' motion, the motion is denied without prejudice to defendants' right to raise these issues again at the conclusion of the plaintiff's case. See Fed. R. Civ. P. 50.
BY THE COURT:
THOMAS J. RUETER
United States Magistrate Judge
AND NOW, this 18th day of June, 1997, upon consideration of defendants' motion for summary judgment (Document No. 14), plaintiff's response thereto (Document No. 20), and supplemental filings of both parties, it is hereby
that defendants' motion is GRANTED IN PART and DENIED IN PART. For the reasons set forth in this court's Memorandum of Decision filed this day, judgment is hereby entered in favor of defendants on all of plaintiff's claims relating to the following:
1. the statements concerning the January 1990 searches of the MOD members' homes ("Passage No. 3");
2. the statements concerning the 2600 meeting in Passage No. 4;
3. the statements concerning the dot-annoy computer program ("Passage No. 5");
4. the statements concerning the criminal proceedings and plaintiff's cooperation with law enforcement officials ("Passage No. 8").
Defendants' motion for summary judgment is DENIED on all other issues raised in their motion, without prejudice to again raise these issues at trial.
BY THE COURT:
THOMAS J. RUETER
United States Magistrate Judge