Dickey v. CBS, INC.

• Decision Date: 31 October 1977
• Docket Number: Civ. A. No. 74-1867.
• Parties: Samuel R. DICKEY v. CBS, INC.
• Court: U.S. District Court — Eastern District of Pennsylvania

441 F. Supp. 1133

Samuel R. DICKEY v. CBS, INC.

Civ. A. No. 74-1867.

United States District Court, E. D. Pennsylvania.

October 31, 1977.

Alvin S. Ackerman, Upper Darby, Pa., for plaintiff.

George P. Williams, III, Philadelphia, Pa., for defendant.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

McGLYNN, District Judge.

This is an action for libel resulting from statements made by an incumbent U. S. Representative during the course of a primary political campaign in 1974 which were aired by the defendant on a public affairs television program called "Update".

That the statements were defamatory and false is not disputed, but because the plaintiff is admittedly a public figure, the issue to be decided is whether plaintiff has proved by clear and convincing evidence that the defamatory communication was published with "actual malice, that is, with knowledge that it was false or with reckless disregard as to whether it was false or not." New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964).

After hearing the evidence and upon consideration of the briefs and arguments of counsel, the court makes the following

FINDINGS OF FACT

1. Plaintiff, Samuel R. Dickey ("Dickey") is a citizen of Pennsylvania.

2. CBS is a New York corporation having its principal place of business at New York, New York.

3. The matter in controversy exceeds, exclusive of interest and costs, the sum of $10,000.

4. The defendant, CBS, owns and operates the television station WCAU-TV, Channel 10 which telecasts throughout the metropolitan area of Philadelphia, Pennsylvania and surrounding counties, including Delaware County.

5. On May 5, 1974, CBS broadcast over Channel 10 a program called the "Update Show" on which the candidates for the Republican nomination for the United States House of Representatives for the Seventh Congressional District were interviewed by John Facenda and Dan Cryor, news reporters on the staff of Channel 10. The candidates who participated in the program were Congressman Lawrence G. Williams, the incumbent, Stephen J. McEwen, Esquire, the District Attorney of Delaware County, and Arnold A. Barnaby, Esquire. Both Williams and McEwen held their respective offices for approximately eight years.

6. The Update Show of May 5, 1974, had been recorded on videotape in the studio of Channel 10 during the evening of Wednesday, May 1, 1974.

7. In the course of the Update Show of May 5, 1974, Congressman Williams, as part of his response to a question from Dan Cryor soliciting his views on inflation, made the following statement which plaintiff claims to be actionable:

". . . In addition to that, we've had a report prepared by Delaware County tax money, commonly referred to as the Sprague Report, when it should be referred to as the McEwen Report, because this report was bought and paid for by the tax dollars of the people of Delaware County. Now in this report and in the preliminary informational reports appears the information that Phil Toanone made a $25,000 payoff. In the same information a $55,000 payoff was made by the, for the Barclay Square Apartments; and a $20,000 payoff for the Bishop Hill Apartments, and I could go on and on. Now this information has been available to our District Attorney, who says he's not going to go on the War Board. Of course he's not. He lives in Upper Darby and Upper Darby is represented on the War Board by Sam Dickey, to whom these payments have been made. And in spite of the fact that these preliminary informational reports were finished in early, early 1973, some people would have us believe that no final report has been prepared. Now, I say if anybody's going to deny that and try to cover this stuff up, then these reports should be turned over to the Attorney General of the State of Pennsylvania, to be reviewed by him along with the investigators employed by Delaware County for Sprague, as well as the members of the CID, the investigators of the CID, who participated in the preparation of this report."

8. Immediately following the quoted remarks of Congressman Williams, the following was said by Messrs. Facenda and McEwen:

"MR. FACENDA: I wanted to ask that question of Mr. McEwen. Sprague hasn't yet made public that particular report, and why hasn't he, and do you intend to, well, is that normal procedure, let me put it that way.

"MR. McEWEN: Well, John, there is no report. Mr. Williams was invited, in fact he set the time and place in my office last Wednesday, a week ago today, and Mr. Sprague appeared, I appeared, Mr. Williams did not. Mr. Sprague in a conference with the press made perfectly clear at that time that there is no report, that he would expect the report to be ready mid-summer. As far as the reasons why, I guess they would rather, they, they would be more appropriately addressed to Mr. Sprague himself. He indicated at that time, however, he had other matters that required his attention, such as the conviction of the ten or so defendants of murder, including Mr. Boyle more recently in the Delaware County courts, so that Mr. Sprague was brought in 1971 as an independent investigator, as an independent prosecutor, and that concept began in Delaware County so the people of the County could have confidence in the District Attorney's office. Mr. Williams' charges about reports that I have and Mr. Sprague has is just incorrect. There is no such report. And that's that. Now you can take the word of Mr. Sprague or Mr. Williams, and I'll ride any time with Mr. Sprague, that's for sure.

9. On the 7 P.M. news show of May 5, 1974, Channel 10 broadcast a news item concerning Congressman Williams' charges in which Williams' remarks on the Update Show were shown on videotape, following which Alvin S. Ackerman, Esquire, Dickey's attorney ("Ackerman"), appeared live and denied the truthfulness of what Williams had said about Dickey.

"MR. ROSELLE: Good evening from the newsroom. I'm Bert Roselle. Here's what's going on. Corruption charges in Delaware County. Incumbent Republican Congressman Lawrence Williams and the two Republicans who want his job are our guests of Update today. Williams lost the County organization support earlier this year to District Attorney Stephen McEwen. Today, Williams charged wide-spread macing in Delaware County: called McEwen a do-nothing part-time District Attorney; then dropped a bombshell:

"MR. WILLIAMS: We've had a report prepared by Delaware County tax money, commonly referred to as the Sprague Report when it should be referred to as the McEwen Report, because this report was bought and paid for by the tax dollars of the people of Delaware County. Now in this report and in the preliminary informational reports appears the information that Phil Toanone made a $25,000. payoff. In the same information a $55,000. payoff was made by the, for the Barclay Square Apartments; and a $20,000. payoff for the Bishop Hill Apartments, and I could go on and on. Now this information has been available to our District Attorney, who says he's not going to go on the War Board. Of course, he's not. He lives in Upper Darby and Upper Darby is represented on the War Board by Sam Dickey, to whom these payments have been made. And in spite of the fact that these preliminary informational reports were finished in early, early 1973, some people would have us believe that no final report has been prepared. Now, I say if anybody's going to deny that and try to cover this stuff up, then these reports should be turned over to the Attorney General of the State of Pennsylvania, to be reviewed by him along with the investigators employed by Delaware County for Sprague, as well as the members of the CID, the investigators of the CID, who participated in the preparation of this report.

"MR. ROSELLE: McEwen challenged Williams. He said the report in question won't be ready till midsummer, but right now no such report exists. Delaware County Supervisor Samuel Dickey is not feeling well. Here to answer Williams' charges that Dickey took payoffs is Alvin Ackerman, Mr. Dickey, Mr. Dickey's attorney Mr. Ackerman, how do you respond to those allegations?

"MR. ACKERMAN: Bert, I . . . I, I, I, I'm just absolutely amazed and shocked that a man who's a Congressman of the United States, elected by the people of Delaware County, could make such irresponsible statements on television or even in private. First of all, Mr. Williams knows perfectly well that there is no Sprague report. Mr. Sprague has told him that. It's been published in the newspapers; it's been on television. Yet he refers to a Sprague report and says that that report says that Mr. Dickey took payoffs. Now, I've talked with Mr. Dickey about this. He absolutely denies that any payoffs were ever taken, that any payoffs were offered, or that any payoffs were given. This matter was investigated fully, Bert, by the Pennsylvania Crime Commission and by Mr. Sprague and his investigators. You know, when a Congressman comes along and says that these payoffs were made to Samuel R. Dickey, I, I think he must know that he libeled Mr. Dickey, told a complete and utter falsehood. Mr. McEwen during the course of the program, and I watched it, talked in terms of the Congressman being mistaken. I have to go much further than that. Mistaken is just too kind a word. These were falsehoods; Mr. Williams knows they're falsehoods; and it's Mr. Dickey's intention and he's instructed me to file suit for libel, which I intend to do the very first thing Monday, Monday morning. We would hope that Mr. Williams will cooperate and come forth quickly so that we may take his deposition so that the people of Delaware County and elsewhere may find, just as we have, that there is absolutely nothing to the charges that he's made. I do want to say one other thing . . .

"MR. ROSELLE: We're just about out of time. So please wrap it up very quickly, if you would.

"MR. ACKERMAN: I want only to comment on the sale of parkland. First of all, it wasn't a

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