Corabi v. Curtis Pub. Co.

• Decision Date: 25 January 1971
• Docket Number: CURTIS PUBLISHING COMPANY,Appellant in No. 487.
• Citation: 273 A.2d 899,441 Pa. 432
• Parties: Lillian Reis CORABI, a/k/a Lillian Reis, Appellant in Nos. 499, 529, and Barbara Corabi and Michael Corabi, by Lillian Reis Corabi, their parent and guardian, v.
• Court: Pennsylvania Supreme Court

273 A.2d 899

441 Pa. 432

Lillian Reis CORABI, a/k/a Lillian Reis, Appellant in Nos. 499, 529, and Barbara Corabi and Michael Corabi, by Lillian Reis Corabi, their parent and guardian, v. Nos. 487, 499, 529.

CURTIS PUBLISHING COMPANY, Appellant in No. 487.

Supreme Court of Pennsylvania.

January 25, 1971.

Rehearing Denied March 8, 1971. [Copyrighted Material Omitted] [Copyrighted Material Omitted]

Harold E. Kohn, Helen H. Stern, Philadelphia, for Curtis Pub. co.

Tom P. Monteverde, Jerome J. Shestack, Robert F Simone, Philadelphia, for Lillian Reis Corabi.

Before BELL, C.J., and JONES, COHEN, EAGEN, O'BRIEN, ROBERTS and POMEROY, JJ.

OPINION

EAGEN Justice.

Lillian Reis Corabi, also known as Lillian Reis, instituted this suit on her own behalf and on behalf of her two daughters, as parent and guardian, seeking damages in five counts from the defendant, Curtis Publishing Company, for publication of an article in the October 26, 1963, issue of the Saturday Evening Post entitled 'They call Me Tiger Lil.' The complaint charged the article: (1) constituted unfair competition with Lillian Reis Corabi; (2) was defamatory of Lillian Reis Corabi; (3) invaded the privacy of Lillian Reis Corabi; (4) plagiarized from Lillian Reis Corabi; and (5) invaded the privacy of the two daughters of Lillian Reis Corabi, Barbara and Michael Corabi.

A jury trial resulted in a verdict in favor of the plaintiff and against the defendant in substantial amounts on counts Nos. 1, 2, 3 and 5.

Timely motions were filed by the defendant for judgments notwithstanding the verdict or a new trial. Subsequently, the court en banc below entered judgment for the defendant notwithstanding the verdict on the counts involving Lillian Reis Corabi's claims for unfair competition and invasion of privacy. The court denied the defendant's motion for judgment notwithstanding the verdict on the remaining counts, but ruled that the jury awards in connection therewith were grossly excessive and ordered a new trial, unless remittiturs for specified amounts were filed within thirty days. Proper remittiturs were not filed, and the order granting a new trial prevailed. See 437 Pa. 143, 262 A.2d 665 (1970).

Defendant, Curtis Publishing Company, filed an appeal (No. 487), and Lillian Reis Corabi filed two cross- appeals. (Nos. 499 and 529). No appeal was filed on behalf of Barbara and Michael Corabi. APPEAL OF CURTIS PUBLISHING COMPANY (Curtis) (No. 487)

The prime issue posed by this appeal is whether or not the lower court erred in refusing to enter judgment for the defendant Curtis notwithstanding the verdict on all claims presented by the plaintiff, particularly the personal claim of Lillian Reis for libel. In this connection, it is asserted that recovery must be denied as a matter of law because: (a) The publication involved was incapable of the interpretation urged by the plaintiff and was not defamatory as a matter of law; (b) The plaintiff, admittedly a public figure, failed to show by clear and convincing evidence either falsity or actual malice, and hence permitting recovery against Curtis under the circumstances would violate its rights guaranteed by the First and Fourteenth Amendments to the Constitution of the United States.

Before reaching the prime issue a discussion of our scope of review is necessary. As noted before, Curtis moved both for judgment n.o.v. and a new trial on the libel count. The lower court denied the former, but granted the latter. An appeal from the order denying judgment n.o.v. is specifically permitted by the Act of April 9, 1925, P.L. 221, 12 P.S. § 682.

The Act of April 9, 1925, supra, was first construed by this Court in March v. Phila. & West Chester Traction Co., 285 Pa. 413, 132 A. 355 (1926). It was therein held that in reviewing an appeal in cases where a motion for judgment n.o.v. has been denied but a new trial has been awarded, the appellate courts will affirm unless the granting of the new trial was a clear abuse of discretion. Absent such abuse, the issue of the refusal of judgment n.o.v. would not even be considered. Thus the rules governing appeals from orders which simply grant a new trial were held applicable: See, e.g., Phillips v. Cowden, 370 Pa. 288, 88 A.2d 404 (1952); Beal v. Reading Company, 370 Pa. 45, 87 A.2d 214 (1952); Regan v. Davis, 290 Pa. 167, 138 A. 751 (1927); Pringle v. Smith, 286 Pa. 152, 133 A. 33 (1926). After a careful reading of the statute and review of the cases thus far decided thereunder, we conclude the approach adopted in March, supra, thwarts the purpose of the statute.

In the situation at issue, there is no final order or judgment as to the moving party from which an appeal could be taken. Because of the favorable action on its motion for a new trial, the denial of its motion for judgment n.o.v. is an interlocutory order, which would not be appealable absent specific statutory authorization therefor. The purpose of the Act of April 9, 1925, supra, was to provide a statutory right of appeal to the moving party from this interlocutory order, because it if were entitled to judgment n.o.v., this would be determinative of the case, justifying a speedy review of this issue. In this respect, it is analogous to the Act of March 5, 1925, P.L. 23 § 1, 12 P.S. § 672, whereby questions of jurisdiction, because of their determinative significance, are appealable although interlocutory. Thus, when the moving party appeals pursuant to the Act of April 9, 1925, supra, it is Not appealing from the favorable grant of a new trial, as the Court indicates in March, supra, but it is appealing from the interlocutory decision denying the motion for judgment n.o.v., and the statute so specifically states.

The granting of the new trial and the denial of the judgment n.o.v., should be considered independently of one another. Only the motion denying judgment n.o.v. should be considered when an appeal is taken pursuant to the Act of April 9, 1925, supra, because the granting of the motion for a new trial is an interlocutory order as to the moving party, for which no statutory right of immediate appeal has been given. Thus, if one skirts the judgment n.o.v. issue, as sanctioned in March, supra, the purpose of the statute is emasculated, resulting in a perhaps unwarranted new trial with accompanying expense in money, time and judicial resources. This has been implicitly recognized in several cases: See, e.g., Kuhler v. Harrison Const. Co., 361 Pa. 100, 62 A.2d 853 (1949); Aland v. P-H Publishing Co., 337 Pa. 259, 10 A.2d 5 (1940); Schroeder Bros., Inc. v. Sabelli, 156 Pa.Super. 267, 40 A.2d 170 (1944); Matevish v. Ramey Boro. School Dist., 167 Pa.Super. 313, 74 A.2d 797 (1950); Silveus v. Grossman, 102 Pa.Super. 365, 156 A. 716 (1931). We therefore abandon the standard of review set forth in March, supra, and will proceed to consider directly the merits of the contention of Curtis that it is entitled to judgment n.o.v. on all claims involved.

Was the publication libelous? A libel is a maliciously written or printed publication which tends to blacken a person's reputation or to expose him to public hatred, contempt, or ridicule, or to injure him in his business or profession: Volomino v. Messenger Pub. Co., 410 Pa. 611, 189 A.2d 873 (1963); Cosgrove Studio & Camera Shop, Inc. v. Pane, 408 Pa. 314, 182 A.2d 751 (1962); Schnabel v. Meredith, 378 Pa. 609, 107 A.2d 860 (1954).

The elements which a plaintiff must prove to recover in an action for libel under the law of Pennsylvania were delineated by statute by the passage of the Act of August 21, 1953, P.L. 1291, § 1, 12 P.S. § 1584a (Supp.1970). Among these are the 'defamatory character of the communication' and the 'recipient's understanding of its defamatory meaning.' Curtis first maintains that the article published was incapable of the interpretation urged by the plaintiff and was not defamatory as a matter of law.

'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:' Cosgrove Studio & Camera Shop, Inc. v. Pane, supra, 408 Pa. at 318, 182 A.2d at 753; Birl v. Phila. Elec. Co., 402 Pa. 297, 303, 167 A.2d 472 (1960); Restatement of Torts § 559 (1938). And 'to be defamatory, it is not necessary that the communication actually cause harm to another's reputation or deter third persons from associating or dealing with him. Its character depends upon its general tendency to have such an effect. In a particular case it may not do so either (1) because the other's reputation is so hopelessly bad or (2) so unassailable that no words can affect it harmfully, or (3) because of the lack of credibility of the defamer:' Restatement of Torts § 559, comment d (1938). See also, Miller v. Hubbard, 205 Pa.Super. 111, 207 A.2d 913 (1965).

Procedurally, it is the function of the court, in the first instance, to determine whether the communication complained of is capable of a defamatory meaning: Volomino v. Messenger Pub. Co., supra; Cosgrove Studio & Camera Shop, Inc. v. Pane, supra; Restatement of Torts § 614(1) (1938). If the court determines that the statement is capable of a defamatory meaning, it is for the jury to determine whether it was so understood by the recipient: Kernick v. Dardanell Press, 428 Pa. 288, 236 A.2d 191 (1967); Richwine v. Pittsburgh Courier Pub. Co., Inc., 186 Pa.Super. 644, 142 A.2d 416 (1958); Restatement of Torts § 614(2) (1938). The lower court in this case did not err in finding those passages which it submitted to the jury capable of defamatory meaning. ^[1]

[Entire Page Contains Footnote] To determine the meaning of an allegedly libelous communication, it must be read in context: Restatement of Torts ...