Dominiak v. National Enquirer

• Citation: 266 A.2d 626,439 Pa. 222
• Parties: , 42 A.L.R.3d 798 John DOMINIAK, a minor, by Raymond J. Quaglia, Esq., his guardian, Appellant, v. NATIONAL ENQUIRER, Best Medium Publishing Co., Inc. and United News Company.
• Decision Date: 02 July 1970
• Court: United States State Supreme Court of Pennsylvania

Page 626

266 A.2d 626

439 Pa. 222, 42 A.L.R.3d 798

John DOMINIAK, a minor, by Raymond J. Quaglia, Esq., his guardian, Appellant, v. NATIONAL ENQUIRER, Best Medium Publishing Co., Inc. and United News Company.

Supreme Court of Pennsylvania.

July 2, 1970.

Michael J. Pepe, Jr., Philadelphia, for appellant.

John J. Runzer, Wilbur H. Haines, Jr., Philadelphia, for appellees National Enquirer and Best Medium Pub. Co., Inc.

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

OPINION OF THE COURT

COHEN, Justice.

This appeal involves the application of Pennsylvania's one year statute of limitations for libel, Act of March 27, 1713, 1 Sm.L. 76, § 1, 12 P.S. § 31; Act of April 25, 1850, P.L. 569, § 35, 12 P.S. § 32, to the Uniform Single Publication Act, Act of August 21, 1953, P.L. 1242, § 1 et seq., 12 P.S. § 2090.1 et seq. ¹

John Dominiak, a minor, by his guardian, filed suit against National Enquirer, Best Medium Publishing Co., Inc. and United News Company on March 15, 1965 alleging that the National Enquirer issue dated March 29, 1964 contained material defamatory to him. Appellees, Best Medium Publishing Co. and National Enquirer, moved for summary judgment on the ground that the cause of action was barred by the statute of limitations, and this motion was granted by the court below.

The relevant facts are as follows. Printing of the issue of the National Enquirer dated Sunday, March 29, 1964, commenced in Tenafly, New Jersey on Tuesday, March 10, 1964. Beginning on March 10, copies were transported by Best from the printing plant to New York City railroad terminals and other terminals for shipment to wholesalers throughout the country. Copies were distributed to employees of these terminals on March 10. On Thursday, March 12, copies were delivered by Best to approximately 4,000 newsstands and other retail dealers throughout the New York City metropolitan area, on which date approximately 200,000 copies were placed on public sale. On Friday, March 13, copies were placed on sale at newsstands, and on the same date subscription copies were mailed to subscribers from the General Post Office in New York City. Beginning on Saturday, March 14, copies were placed on sale at newsstands in Philadelphia. The issue remained on sale at newsstands for one week when unsold copies were removed and replaced by copies of the next issue.

The court below held that '(t)he important date in this case as appears from the uncontradicted evidence on the record is March 14, 1964, which is the date on which the publication appeared for the first time in Philadelphia. Since suit was started on March 15, 1965, there can be no question but that it is barred by the Statute of Limitations.' As appellees concede, if March 14, 1964, is the date on which the one year period commenced, the conclusion of the court below is incorrect in light of Section 38 of the Pennsylvania Statutory Construction Act, Act of May 28, 1937, P.L.1019, 46 P.S. § 538, and Pa.R.C.P. 106, 12 P.S.Appendix. They would permit the filing of the action on March 15, 1965, as March 14, 1965 was a Sunday.

It is appellees' position, however, that the crucial date is not March 14, 1964, but rather March 10, with the commencement of delivery of copies to common carriers for shipment and distribution to terminal employees, Hartmann v. Time, Inc., 166 F.2d 127 (3d Cir. 1947), Backus v. Look, Inc., 39 F.Supp. 662 (S.D.N.Y.1941), National Cancer Hospital of America v. Confidential, Inc., 151 N.Y.S.2d 443 (Sup.Ct.1956), or at the latest March 12, when 200,000 copies were placed on sale to the public in the New York metropolitan area, Zuck v. Interstate Publishing Corp., 317 F.2d 727 (2d Cir. 1963), Gregoire v. G. P. Putnam's Sons, 298 N.Y. 119, 81 N.E.2d 45 (1948), Polchlopek v. American News Co., 73 F.Supp. 309 (D.Mass. 1947).

In analyzing this position, it is necessary to examine the conditions that led to the passage of the Uniform Single Publication Act, supra. Traditionally, the common law held that each communication of a defamatory statement created a separate cause of action. Duke of Brunswick v. Harmer, 14 Q.B. 185, 117 Eng.Rep. 75 (1849). With the development of mass media as it is known today, such a rule became anachronistic because it created the possibility that a single defamatory statement would give rise to millions of causes of action.

'From the sheer necessity thus created, and from a recognition that mass communication of a single defamatory communication, for practical purposes, constitutes a single wrong, the courts have developed a theory of a 'single publication' as one composite tort which embraces all the acts involved in the printing and distribution of a newspaper or magazine to its millions of readers in many jurisdictions.' 1 Harper and James, The Law of Torts, § 5.16 at 394--395.

In many states the single publication rule has been adopted as part of the common law. Wolfson v. Syracuse Newspapers, Inc., 254 App.Div. 211, 4 N.Y.S.2d 640 (1938), aff'd 279 N.Y. 716, 18 N.E.2d 676 (1939); Restatement 2d, Torts, Tentative Draft No. 12, § 577A (1966). In Pennsylvania and six other states the principle has been adopted by the legislature.

The section of the statute applicable to this appeal is Section 1, 12 P.S. § 2090.1, which states in pertinent part:

'No person shall have more than one cause of action for damages for libel * * * or any other tort founded upon any single publication * * * such as any one edition of a newspaper * * *. Recovery in any action shall include all damages for any such tort suffered by the plaintiff in all jurisdictions.'

It is the position of appellees that 'the single publication rule centers on the principles that a single issue of a magazine or newspaper, although that issue consists of thousands of copies widely distributed, is in legal effect one publication which gives rise to but one cause of action for libel, and that the single cause of action accrues at the time of first publication.' Therefore, their argument is directed to the problem of what day was the day of first publication for purposes of the statute, for it is their contention that it is on that day that the one year period commenced.

It is true, as appellees contend, that a number of cases hold that the Statute of Limitations begins to run as to the single cause of action on the date of initial publication. Buckley v. New York Post Corporation, 2 Cir., 373 F.2d 175 (1967); Zuck v. Interstate Publishing Corp., supra; Hartmann v. Time, supra; Kilian v. Stackpole Sons, Inc., 98 F.Supp. 500 (M.D.Pa. 1951). All of those cases, however, were interpreting the common law, and there is only one case, Belli v. Roberts Brothers Furs, 240 Cal.App.2d 284, 49 Cal.Rptr. 625 (1966), which has given this interpretation to the Uniform Single Publication Act.

We find that neither the wording of the statute for the policy behind it requires a holding that the period of limitations begins to run from the time of the first publication. It is clear that the statute was designed to offer protection to the defendant from countless suits, an almost endless tolling of the statute of limitations and diversity in applicable substantive law (although the choice of law problems in this area have scarcely been settled). That purpose can be effectuated by holding that the plaintiff may choose any publication as the single publication which represents his single cause of action. This does not mean that he may recover damages for all publications; to hold that would defeat the statute's purpose to prevent endless tolling of the statute of limitations. He may only recover damages that result from publications occurring within one year (assuming that is the applicable limitations period) of the date he chooses. An example might be helpful. Assume publications of a defamatory article were made in New York beginning on January 1, in Pennsylvania beginning on February 1, and in New Jersey on March 1 (all in year 1). Assume then the plaintiff brought suit in Pennsylvania on February 15 of Year 2. Under appellees' theory, his whole suit would be barred. (It does not matter which state's statute of limitations is applied as each is one year. N.J.S.A. 2A:14--3; N.Y.Civil Practice Act, § 51--a). Under our interpretation of the statute, the plaintiff would not be able to recover for any damages suffered in New York as a result of publications there prior to February 15 of Year 1, because the one year period had expired. He would be able to recover for damages suffered as a result of publications in New Jersey because that one year period had not expired. As to damages suffered in Pennsylvania, he would be able to recover for those suffered as a result of publications after February 15 of Year 1 but not those suffered as a result of publications before. The nature of the defamatory publication might be helpful in this difficult job of assessing damages. For example, the damage done by an article in a daily newspaper would probably be greatest in the day or two following initial publication, while that done by a book might be constant over a long period or even increase over time if the defamatory matter created constantly increasing public interest and sales.

The problem with the theory presented by the appellees is the potential for abuse it creates. An unscrupulous publisher might print a defamatory article about a California and distribute a few copies in New York; the plaintiff might well feel that the time and expense involved did not warrant the filing of an action; then after the one year period was over (assuming California has a one year period also) the publisher could flood California and the rest of the country with the article and, under appellees' theory, face no threat of liability. See Winrod v. McFadden Publications, 62 F.Supp. 249, 251 (N.D. Ill. 1945); Hartmann v. American News Co., 69 F.Supp. 736, 738--739 (W.D. Wis. 1947); Note, The...