Bobb v. Kraybill

• Court: Pennsylvania Superior Court
• Writing for the Court: BROSKY
• Citation: Bobb v. Kraybill, 511 A.2d 1379, 354 Pa.Super. 361 (Pa. Super. Ct. 1986)
• Decision Date: 16 July 1986
• Parties: Earl T. BOBB, Appellant, v. Eugene KRAYBILL, Individually and also in his capacity as an agent, Servant and Employee of Lancaster Newspapers, Inc., t/d/b/a the Intelligencer Journal, Frederick Cusick, Individually and also in his capacity as an Agent, Servant and Employee of Philadelphia Newspapers, Inc., t/d/b/a Philadelphia Inquirer, Philadelphia Newspapers, Inc., t/d/b/a Philadelphia Inquirer, Lancaster Newspapers, Inc., t/d/b/a Intelligencer Journal.

Page 1379

511 A.2d 1379

354 Pa.Super. 361

Earl T. BOBB, Appellant, v. Eugene KRAYBILL, Individually and also in his capacity as an agent, Servant and Employee of Lancaster Newspapers, Inc t/d/b/a the Intelligencer Journal, Frederick Cusick Individually and also in his capacity as an Agent, Servant and Employee of Philadelphia Newspapers, Inc., t/d/b/a Philadelphia Inquirer, Philadelphia Newspapers, Inc t/d/b/a Philadelphia Inquirer, Lancaster Newspapers, Inc t/d/b/a Intelligencer Journal.

Superior Court of Pennsylvania.

Argued April 21, 1986.

Filed July 16, 1986.

Spero T. Lappas, Harrisburg, for appellant.

George C. Werner, Jr., Lancaster, for Kraybill, appellee.

Kerry L. Adams, Williamsport, for Cusick, appellee.

Before WICKERSHAM, BROSKY and WATKINS, JJ.

BROSKY, Judge.

This is an appeal from the order granting appellees' motions for summary judgment in this defamation action. The sole issue for our determination is whether the trial court erred in finding no genuine issue of material fact as to the truthfulness of the articles published. The trial court found that appellant did not and could not contest the substantial truth of the articles and, therefore, granted appellees' motions for summary judgment. ¹ We agree with the trial court and, accordingly, affirm its order.

The record reveals that appellant was a marketing manager with the Pennsylvania Bureau of State Lotteries. In the course of his employment with the Bureau, appellant came into contact with Bernie Alimenti, a tobacco store owner and authorized lottery ticket sales agent.

In late December 1982, appellant told Alimenti that he needed $1,000.00 for a short term and asked if Alimenti could help. Appellant offered Alimenti an undated, personal check as collateral for what appellant intended to be a personal loan. Alimenti, fearing the loss of his lucrative lottery machine if he refused appellant's request, was uneasy about the encounter and contacted the local police. The police, in turn, alerted agents of the Attorney General's Office about appellant's request. The agents outfitted Alimenti with a recording device and a second meeting with appellant was arranged. Alimenti, now wearing the recorder, told appellant that he did not have $1,000.00 and that the only way he could accommodate appellant's loan request was by drafting a check from his lottery "winner's account." Lottery agents are required to maintain two lottery bank accounts, one of which is a "float" account from which winners can be paid. Appellant was aware that as a sales agent, Alimenti could withdraw funds from the float account. The two men agreed to the transaction and Alimenti wrote a check for $1,000.00 which they presented at a nearby bank. While cashing the check, Alimenti stated to the teller, "this man's a winner." Appellant took the cash and departed. Shortly thereafter, appellant was fired from his job for "misrepresentation of [his] position with the Bureau of Lotteries" in connection with the loan transaction.

Appellant did repay the $1,000.00 on January 12, 1983 when Alimenti deposited appellant's personal check. The Attorney General's Office declined to prosecute appellant for lack of a clearly defined prosecutable offense.

Reports of these events appeared in the February 5th, 1983 edition of the Lancaster Intelligencer Journal and the February 7th, 1983 edition of the Philadelphia Inquirer. The articles were authored by appellees Kraybill and Cusick respectively. Appellant filed the instant action in May 1983. Finding no genuine issue of material fact as to the truthfulness of the articles published, the trial court granted summary judgment and this appeal timely followed.

When reviewing an order granting summary judgment, our function is to determine whether there exist genuine issues of triable fact. Bowman v. Sears, Roebuck & Co., 245 Pa.Super. 530, 369 A.2d 754 (1976). As we stated in Harris by Harris v. Easton Publishing Co., 335 Pa.Super. 141, 152, 483 A.2d 1377, 1382-83 (1984):

Summary judgment is made available by Pa.R.C.P. 1035 when the pleadings, depositions, answers to interrogatories, admissions on file and supporting affidavits considered together reveal no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Husak v. Berkel, Inc., 234 Pa.Super. 452, 341 A.2d 174 (1975). To determine the absence of a genuine issue of material fact, we must view the evidence in the light most favorable to the non-moving party and any doubts must be resolved against the entry of judgment. Id. In so doing, we accept as true all well-pleaded facts in appellant's pleadings and give appellant the benefit of all reasonable inferences to be drawn therefrom. Spain v. Vicente, 315 Pa.Super. 135, 461 A.2d 833 (1983). Summary judgment is appropriate only in those cases which are clear and free from doubt. Id.

Truth is an absolute defense to defamation in Pennsylvania. Hepps v. Philadelphia Newspaper, Inc., 506 Pa. 304, 485 A.2d 374 (1984), reversed and remanded on other grounds, 475 U.S. 767, 106 S.Ct. 1558, 89 L.Ed.2d 783 (1986); 42 Pa.C.S. § 8342. ² Appellees raised the defense of truthfulness in their pleadings and in their briefs in support of the motions for summary judgment. Thus, our inquiry becomes whether, in viewing the evidence relevant to a motion for summary judgment most favorably toward appellant as the non-moving party, there exists a genuine issue of material fact as to the substantial truth of the stories reported.

Since the trial court found that appellant's issues did not contest the substantial truth of the articles, it granted the motions for summary judgment. After carefully reviewing the record and briefs submitted by the parties, we agree with the trial court's determination.

The record shows that appellant was unable to specify anything reported that was misquoted or false. Appellant's primary contentions were that the stories were "not printed in the proper way"; were one sided; were too detailed; and did not present the proper perspective of the situation. At his deposition, appellant's answers were...