Ertel v. Patriot-News Co., PATRIOT-NEWS

• Decision Date: 17 July 1996
• Docket Number: PATRIOT-NEWS
• Citation: 674 A.2d 1038,544 Pa. 93
• Parties: , 24 Media L. Rep. 2233 Allen E. ERTEL, Appellee, v. TheCOMPANY, Dick Sarge, and William C. Costopoulos, Appellants.
• Court: Pennsylvania Supreme Court

Page 1038

674 A.2d 1038

544 Pa. 93, 24 Media L. Rep. 2233

Allen E. ERTEL, Appellee, v. The PATRIOT-NEWS COMPANY, Dick Sarge, and William C Costopoulos, Appellants.

Supreme Court of Pennsylvania.

Argued Oct. 23, 1995.

Decided April 17, 1996.

Reargument Denied July 17, 1996.

David E. Sandel, Jr., Philadelphia, for William C. Costopoulos.

John C. Sullivan, David H. Marion, Philadelphia, for The Patriot News & Dick Sarge.

Samuel E. Klein, Philadelphia, for amicus Publishers.

Martha E. Neil, Philadelphia, for amicus Pa. Newspaper Publishers Assn.

Michael Onufrak, Philadelphia, for William C. Costopoulos.

Before NIX, C.J., and FLAHERTY, ZAPPALA, CAPPY, CASTILLE and MONTEMURO, JJ.

OPINION OF THE COURT

CAPPY, Justice.

These are appeals by allowance from the order of the Superior Court, reversing the entry of summary judgment by the Court of Common Pleas of Philadelphia County. For the reasons that follow, we now reverse.

The instant matter is a civil action for defamation filed by Appellee, Allen E. Ertel ("Ertel"). This action has its origins in a news article published on June 30, 1985 by Appellant, the Patriot-News Company ("Patriot-News") concerning a prosecution conducted by Ertel while he was District Attorney for Lycoming County. This 1974 prosecution resulted in a conviction of Kim Lee Hubbard ("Hubbard") of second degree murder for the death of twelve-year-old Jennifer Hill. Hubbard served ten years in prison for the Hill murder.

Since being accused of the murder, Hubbard has steadfastly asserted his innocence. After Hubbard was released from prison, he and his parents hired Appellant William C. Costopoulos ("Costopoulos") to review the trial in an effort to clear Hubbard's name. Costopoulos studied the case and wrote a twenty-seven page report (the "Costopoulos Report"). He then submitted this report to the Hubbards. The Hubbards, in turn, delivered a copy of the Costopoulos Report to Appellant, Dick Sarge ("Sarge"), a reporter for the Patriot-News who had written previous articles about the case. On June 30, 1985, an article written by Sarge about the Costopoulos Report (the "June 30th article") was published in the Harrisburg Sunday Patriot-News.

As reported in the June 30th article, the Costopoulos Report had noted evidentiary peculiarities and conflicts in the 1974 prosecution and had stated that there was "significant merit" to the Hubbards' claim of "a strong pattern of prosecutorial manipulation and/or tampering of evidence." (R. 354a). The June 30th article stated that the Costopoulos Report had found the following aberrations in the 1974 prosecution:

1. A tire cast was introduced into evidence against Hubbard at the trial. Police said the cast was taken from the field near where the body was discovered, and that it matched a tire on Hubbard's car. Yet evidence established that the tire, which was on Hubbard's car when he was arrested, was purchased and installed after the murder. Moreover, the tire cast clearly reproduced lettering from the tire sidewall. A tire moving through a muddy field would not leave legible traces of sidewall lettering. From this, Costopoulos concluded that "[t]he only logical conclusion to be drawn is that [the tire cast in question] was fabricated." R. 355a.

2. Different witnesses reported the body was found in different places in the farm field. One of the reported places was well away from the boot prints and the tire tracks which were the key pieces of evidence linking the crime to Hubbard. As reported in the June 30th article, Costopoulos believed that these inconsistencies made it possible that the tire and boot casts were fabricated. R. 354a-355a.

3. The Costopoulos report posited that "numerous discrepancies relative to the victim's clothing, together with the condition and location of the body, suggested that the body itself was tampered with." (R. 355a).

The June 30th article also noted that the Hubbards' claims had been rejected in proceedings through the Supreme Court of Pennsylvania, the United States District Court for the Middle District of Pennsylvania, and the Third Circuit. (R. 354a). After reading the article, Ertel demanded and received from the Patriot-News an apology which was published in the July 7, 1985 edition of the Sunday Patriot-News.

Ertel subsequently filed suit against Costopoulos, Sarge and the Patriot-News for defamation based on the June 30th article. ¹ (Hereafter, Sarge and the Patriot-News shall be collectively referred to as "the newspaper".)

The newspaper and Costopoulos moved for summary judgment. The trial court held that Ertel had not shown he could establish "actual malice" by clear and convincing evidence, and thus granted summary judgment in favor of the newspaper and Costopoulos. The trial court did not address the other arguments presented by the newspaper and Costopoulos to support their motion for summary judgment.

The Superior Court, in a memorandum opinion, addressed all claims raised by the newspaper and Costopoulos, and held that none of them justified the entry of summary judgment. Thus, it reversed the trial court and remanded. The newspaper and Costopoulos subsequently filed Petitions for Allowance of Appeal, both of which were granted by this Court.

Pennsylvania Rules of Civil Procedure Rule 1035 governs summary judgment, and it states in pertinent part:

(a) After the pleadings are closed, but within such time as not to delay trial, any party may move for summary judgment on the pleadings and any depositions, answers to interrogatories, admissions on file and supporting affidavits.

(b) The adverse party, prior to the day of hearing, may serve opposing affidavits.

The judgment sought shall be rendered 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 a judgment as a matter of law....

(d) .... When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.

Pa.R.C.P. No. 1035.

In reviewing this matter, as with all summary judgment cases, we view the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Pennsylvania State University v. County of Centre, 532 Pa. 142, 144-145, 615 A.2d 303, 304 (1992). In examining questions of law, our scope of review is plenary. See Phillips v. A-Best Products Co., 542 Pa. 124, 130, 665 A.2d 1167, 1170 (1995).

Before turning to the particulars of each appeal, we must first examine the law of defamation as it applies to public figures ² to determine whether the trial court's entry of summary judgment in favor of the newspaper was correct.

It is axiomatic that the United States Constitution dictates that certain limits be placed on "a State's power to award damages in a libel action brought by a public official against critics of his official conduct" in order to secure the freedom of speech guaranteed by the First Amendment. See New York Times Co. v. Sullivan, 376 U.S. 254, 256, 84 S.Ct. 710, 713, 11 L.Ed.2d 686 (1964). Thus, it is the burden of a public figure plaintiff, such as Ertel, to show that the statements at issue are false. Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 775, 106 S.Ct. 1558, 1563, 89 L.Ed.2d 783 (1986). The Court reasoned that although "requiring the plaintiff to show falsity will insulate from liability some speech that is false, but unprovably so," this result was justifiable since placing the burden on media defendants to prove truth would create fear of liability and deter free speech. Id. at 777-778, 106 S.Ct. at 1563-65.

In addition to establishing that the statement was false, the public figure plaintiff must also establish that the defendant published the statement with "actual malice," or in other words, published the statement "with knowledge that it was false or with reckless disregard of whether it was false or not." New York Times, 376 U.S. at 279-280, 84 S.Ct. at 726.

As its first issue, the newspaper raises the claim that it is entitled to summary judgment because there was no genuine issue of material fact as to whether the June 30th article was false. The newspaper argues that since Ertel offered no evidence that any of the material was false, an issue on which Ertel bore the burden of proof, then there was no genuine issue of material fact and the newspaper was entitled to judgment as a matter of law.

The Superior Court below rejected the newspaper's claim. The Superior Court held that the newspaper, as the moving party, was obliged to submit evidence that the claimed defamatory material was true, even though the newspaper had no such obligation at trial. See Super.Ct. slip op. at 34. The Superior Court held that in the absence of the newspaper introducing any such evidence, Ertel had no obligation to introduce any evidence concerning its falsity. Employing this standard, the Superior Court concluded that since the newspaper failed to produce evidence to show that the material at issue was true, then Ertel had no obligation to offer even a scintilla of evidence of falsity to withstand the motion for summary judgment.

The Superior Court's decision is inconsistent with the language and purpose of our summary judgment rule. Rule 1035 does not require that the moving party introduce evidence on an issue on which it does not bear the burden of proof in order to have its motion granted. Additionally, the rule explicitly states that a non-moving party may not avoid summary judgment...