Curran v. Philadelphia Newspapers, Inc.

• Decision Date: 19 December 1978
• Citation: 395 A.2d 1342,261 Pa.Super. 118
• Parties: , 4 Media L. Rep. 2201 Robert E. J. CURRAN, Appellant, v. PHILADELPHIA NEWSPAPERS, INC., a/k/a the Philadelphia Inquirer. Robert E. J. CURRAN, Appellant, v. PHILADELPHIA NEWSPAPERS, INC., d/b/a the Philadelphia Inquirer, a Philadelphia Corporation.
• Court: Pennsylvania Superior Court

Page 1342

395 A.2d 1342

261 Pa.Super. 118, 4 Media L. Rep. 2201

Robert E. J. CURRAN, Appellant, v. PHILADELPHIA NEWSPAPERS, INC., a/k/a the Philadelphia Inquirer.

Robert E. J. CURRAN, Appellant, v. PHILADELPHIA NEWSPAPERS, INC., d/b/a the Philadelphia

Inquirer, a Philadelphia Corporation.

Superior Court of Pennsylvania.

Argued March 29, 1978.

Decided Dec. 19, 1978.

Garland D. Cherry, Media, for appellant.

David H. Marion, Philadelphia, for appellee.

Before JACOBS, President Judge, and HOFFMAN, CERCONE, PRICE, VAN der VOORT, SPAETH and HESTER, JJ.

PER CURIAM:

The six Judges who decided this appeal being equally divided the judgment is affirmed.

SPAETH, J., files an opinion in support of affirmance in which VAN der VOORT, J., joins.

CERCONE, J., concurs in the result in the opinion by SPAETH, J.

HESTER, J., files an opinion in support of reversal in which JACOBS, President Judge, and PRICE, J., join.

HOFFMAN, J., did not participate in the consideration or decision of this case.

OPINION IN SUPPORT OF AFFIRMANCE

SPAETH, Judge:

Each of these two appeals, which have been consolidated, is from a summary judgment in favor of appellee, Philadelphia Newspapers, Inc., publisher of the Philadelphia Inquirer. Each action is in libel and is brought by appellant, a former United States Attorney for the Eastern District of Pennsylvania. The question presented is whether a jury should have been permitted to decide whether the statements at issue were published with malice. We shall discuss the two cases separately.

I. Appeal No. 1475

In August, 1972, appellant was appointed United States Attorney, his term to expire in August, 1976. On Wednesday, March 31, 1976, appellant announced his resignation, effective April 30, 1976. In his affidavit incident to the motion for summary judgment appellant says that his decision to resign and return to private practice had been made some time before March 31.

As it happened, appellant had scheduled a meeting in Washington, D. C., for the evening of March 31 on business of the Attorney General's Advisory Committee, to which appellant had been appointed. Since he was to be in Washington for this meeting, appellant had also scheduled a meeting for the next day, April 1, at which he, three assistants, and Deputy Attorney General Harold Tyler were to discuss a criminal investigation. In accordance with this schedule, appellant, after announcing his resignation, departed for Washington, leaving his First Assistant, J. Clayton Undercofler, III, in charge.

On receiving word of appellant's resignation, Anthony Lame, a reporter for the Inquirer, telephoned James Seif, a Special Assistant under Deputy Attorney General Tyler. Upon being told by Lame that appellant had resigned, Seif replied: "It's a good thing he did, because they would have thrown his ass out of here if he hadn't." Lame says in his affidavit that Seif specified that appellant's resignation would have been demanded at the April 1 meeting, although Seif in his affidavit says no mention was made of the April 1 meeting. Lame also says in his affidavit that Seif's statement was consistent with information the Inquirer had previously received from reliable sources that the Justice Department was unhappy with appellant's performance of his duties, and that Tyler had been close to firing appellant before. Seif was in a position to know about personnel conflicts between the Department and the United States Attorneys; Lame considered him a reliable source, and had consulted him before on other matters.

Lame relayed this information to Janice Schaffer, another Inquirer reporter who was writing the story on appellant's resignation. She telephoned two other sources, who confirmed that the Justice Department was indeed seeking to replace appellant. She then spoke with Undercofler. Undercofler told her that the Washington meeting with Tyler had been scheduled for weeks and involved office matters, and that appellant's decision to resign was for personal reasons and not because of a potential firing. Later that day Undercofler again spoke with Schaffer and urged her to call William B. Gray, director of the executive office for United States Attorneys; Undercofler said that Gray would confirm that appellant was not going to be fired and that the meeting with Tyler concerned routine matters.

Schaffer reached appellant by telephone at the Wilmington, Delaware, train station. Appellant said that the Washington meeting was routine, and denied that he had resigned in order to avoid being fired. Schaffer also telephoned Gray; he did confirm that appellant had scheduled the meeting of April 1, but when asked whether the Justice Department was satisfied with appellant's performance, or whether Tyler had intended to ask for appellant's resignation, he refused to comment.

As a result of this activity, on April 1, which was a Thursday, the Inquirer ran a news story about appellant's resignation; the story included the following paragraphs:

Other federal sources, however, said that if Curran had not resigned, he would have been asked to resign at a meeting he had scheduled today with Harold Tyler, deputy attorney general with the Justice Department.

Curran described that report as "ridiculous" and added that he had requested the meeting to discuss office business. Tyler could not be reached for comment. His assistant, William Gray, declined to comment.

During the day Tyler's office notified the Inquirer that not Tyler but appellant had requested the meeting with Tyler, and that Tyler had not planned to ask for appellant's resignation or to fire him. A news story reporting this was printed the next day, April 2.

On Sunday, April 4, another reference to appellant's resignation appeared in the Inquirer's column "In Passing," which was a review of the week's news. The column told of appellant's resignation, and added:

Curran said that his resignation was entirely voluntary and that, in any case, he had planned to resign at the end of his term in August. Federal sources, however, said that the Justice Department was unhappy with Curran and was about to ask him to resign.

There was no reference in the column to Tyler's denial that he had planned to ask appellant to resign.

Appellant's complaint charges that both the first paragraph of the April 1 news story that if he had not resigned, he would have been asked to and the item just quoted from "In Passing" were defamatory and published maliciously. By its motion for summary judgment appellee contended that there was no evidence of malice. The lower court agreed.

-A-

The requirement that malice must be proved was established by New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct 710, 11 L.Ed.2d 686 (1964). There the Supreme Court held:

The constitutional guarantees (of freedom of speech and press) require . . . a federal rule that prohibits a public official ¹ from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with "actual malice" that is, with knowledge that it was false or with reckless disregard of whether it was false or not.

Id., at 279-80, 84 S.Ct. at 726.

This protection extends to false statements of fact, Id., at 271-72, 84 S.Ct. 710, as well as comment or opinion, and malice must be proved with "convincing clarity," Id., at 285-86, 84 S.Ct. 710.

In later cases the Court elaborated on its definition of malice. Malice was found where there was "an extreme departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers." Curtis Publishing Co. v. Butts, 388 U.S. 130, 158, 87 S.Ct. 1975, 1993, 18 L.Ed.2d 1094 (1967). However, ill will and a desire to do harm are not alone sufficient to show malice. Henry v. Collins, 380 U.S. 356, 85 S.Ct. 992, 13 L.Ed.2d 892 (1965). In St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 1325, 20 L.Ed.2d 262 (1968), the Court said:

Reckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication.

-B-

In the normal case we are wary of summary judgment:

(W)e are to accept as true all well pleaded facts in the nonmoving parties' pleadings, as well as the admissions on file, giving to them the benefit of all reasonable inferences to be drawn therefrom; the record must be examined in the light most favorable to them; and in passing upon a motion for summary judgment, it is no part of our function to decide issues of fact but solely to determine whether there is an issue of fact to be tried and all doubts as to the existence of a genuine issue as to a material fact must be resolved against the party moving for summary judgment.

Ritmanich v. Jonnel Enterprises, Inc., 219 Pa.Super. 198, 203, 280 A.2d 570, 573 (1971).

However, this is not the normal case, for it involves the first amendment; in such a case, summary judgment is a preferred procedure. ^1a In Washington Post Co. v. Keogh, 125 U.S.App.D.C. 32, 365 F.2d 965 (1966), Cert. denied, 385 U.S. 1011, 87 S.Ct. 708, 17 L.Ed.2d 548 (1967), the court said:

In the First Amendment area, summary procedures are even more essential. For the stake herein, if harassment succeeds, is free debate. . . . Unless persons, including newspapers, desiring to exercise their First Amendment rights are assured freedom from the harassment of lawsuits, they will tend to become self-censors. And to this extent debate on public issues . . . will become less uninhibited, less robust, and less wide-open, for self-censorship affecting the whole public is 'hardly less virulent for being privately administered.' Smith v. People of State of California, 361 U.S. 147, 154, 80 S.Ct. 215, 219, 4 L.Ed.2d 205 (1959).

Id., 125 U.S.App.D.C. at 35, 356 F.2d at 968.

Similarly, in Bon Air...