Dunlap v. Philadelphia Newspapers, Inc.
| Decision Date | 02 July 1982 |
| Parties | Samuel DUNLAP. v. PHILADELPHIA NEWSPAPERS, INC., Appellant. |
| Court | Pennsylvania Superior Court |
Argued Nov. 6, 1981.
Samuel E. Klein, Philadelphia, for appellant.
Milton A. Lazaroff, Philadelphia, for appellee.
Before SPAETH, BECK and LIPEZ, JJ.
This action for defamation was brought by appellee, a sergeant in the Philadelphia Police Department, against appellant, publisher of The Philadelphia Inquirer. It is based on an article in the Inquirer concerning police corruption. The jury awarded appellee both compensatory and punitive damages. Appellant's motion for judgment n. o. v. or new trial was denied. We have concluded that judgment n. o. v. should have been entered because appellee failed to prove that appellant published the article with "actual malice" or "reckless disregard of the truth," as required by New York Times Co. v Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). [1] We therefore reverse.
In reviewing the denial of a motion for judgment n. o. v., we must view the evidence in the light most favorable to the verdict-winner. Only evidence supporting the verdict may be considered, with the rest being rejected. All conflicts in the evidence are to be resolved in favor of the verdict-winner, or appellee. [2] Kiely v. Southeastern Pennsylvania Transportation Authority, 264 Pa.Superior Ct 578, 401 A.2d 366 (1979); Grubb v. Albert Einstein Medical Center, 255 Pa.Superior Ct. 381, 387 A.2d 480 (1978). Thus viewed, the evidence was as follows:
The article at issue is introduced by a headline that runs the entire width of the Inquirer's front page and states, in one large banner, "Wide Police Corruption Revealed." Reproduced Record at 563a. Immediately beneath the headline are two smaller headlines, side-by-side, the one on the left stating, "Patrol Outside, Gambling Inside," the one on the right, "Hidden Cameras Confirm Reports of Payoff System." Two large photographs are beneath the "Patrol Outside, Gambling Inside" headline. The larger photograph, about seven inches square, shows a man placing his hand inside a police car marked "17B." The caption to this photograph reads, "Sergeant's Car 17B Stops Outside Known Gambling Location." The article itself, entitled "We Watched Gambling Spot Until Policemen Nabbed Us", begins immediately beneath the photograph of car 17B. It describes the "stake-out" conducted by two Inquirer reporters and elaborates on the meaning of the photograph as follows:
We arrived at the location at about 4 P.M. and found the streets empty except for several late model luxury cars parked in the area and one man with grey sideburns and a white shirt pacing the block in front of the rowhouse.
Later, other men talked with the older man and then entered the rowhouse.
At 5:47 P.M., car 17B drove up Wharton st. and turned left onto 36th st., directly below us. The man, who appeared to be in his late 50s or early 60s, walked out into the street, leaned on the driver's side, and reached into the squad car through an open window.
At 5:51 P.M. the car left.
We called the 17th District police station and asked who was driving car 17B that day and was told it was occupied by Sgt. Samuel Dunlap.
* * *
* * *
On Monday I and another reporter went to the 17th District headquarters to show Sgt. Dunlap the photos and to question him about his activities on the afternoon of Sept. 12.
Dunlap, a tall, thin-faced officer with a ruddy complexion, greeted the reporters and sat with them in an interrogation room.
Asked if he was driving car 17B that day, he said, "more than likely."
Asked if he could identify the man leaning into his squad car, Dunlap laughed and said, "Oh sure--that's Hubba Hubba.
Dunlap then identified the man as Vincent Wileczyk, 56, of 3618 Wharton St.
Before Dunlap could be asked any more questions, he took the photographs and showed them to the acting district commander, William Scott.
Scott then motioned myself and the other reporter to his room and said, "I would appreciate if you want to talk to my policemen that you see me first.
"First of all, let's see some identification."
After showing Scott press cards, one reporter asked if Sgt. Dunlap could stay while the photographs were discussed. Scott refused and told Dunlap, "Go back out on the street."
Told that we had talked to Dunlap calmly for several minutes, Scott said,
Scott refused to give any further information, but persistently asked us, "What is your purpose?"
When I said The Inquirer was investigating gambling at the Wharton street address, Scott said he had no reports of gambling at that location.
When told also that the Inquirer was investigating reports of police payoffs in the area, the captain put his arms forward touching the desk, leaned back in his chair and stood up.
"I haven't had any reports of payoffs--Do you want to make a complaint?" Scott asked.
"No," a reporter said. "I want to talk to Dunlap or ask you about Dunlap."
Scott responded, "I'm flatly telling you I will not allow you to ask my policemen any questions."
The evidence of "actual malice," which was essentially uncontroverted, was as follows:
The reporter who wrote the article, Kent Pollack, testified that he had called the police station after the surveillance had taken place to find out who had been in car 17B at the time and was told by whoever answered the telephone that it was appellee. N.T. 6/7/79, 255, N.T. 6/8/79, 331-332. Although Mr. Pollack did obtain this information by pretending to be someone who "wanted to write a letter to the police commissioner to commend" appellee, N.T. 6/7/79, 255, he testified that this ruse had been used during the newspaper's series on police corruption for three months, id. 254.
Mr. Pollack also testified that after his telephone call to the police station, he met with Police Commissioner O'Neill to verify the identity of the officer in car 17B. N.T. 6/7/79, 331-332. However, the Commissioner refused to talk to him or to give him any information. Id. This was corroborated by Acel Moore, who accompanied Mr. Pollack on this interview. N.T. 6/8/79, 308-9.
Ray Holton served as "legman" and his job was to verify the information in the article to be written by Mr. Pollack. N.T. 6/7/79, 284. He testified that he was not satisfied with the telephone identification of the officer in car 17B, and decided to interview appellee. N.T. 6/7/79, 266. He was accompanied on this interview by Mr. Moore, whose job it was to act as "back-up" and to take notes of what was said to insure accuracy in reporting. N.T. 6/7/79, 267 (testimony of Holton). Mr. Moore testified that this was a policy of appellant's and that he had performed this role on other occasions. N.T. 6/8/79, 303. Both Mr. Holton and Mr. Moore testified that they showed the photograph, which later appeared in the newspaper, to appellee and asked him if he was in the car at the time the photograph was taken. N.T. 6/7/79, 272, 281 (Holton), N.T. 6/8/79, 305 (Moore). Both testified that appellee answered, "More than likely." Id. Both testified that appellee was asked to double-check this information from police logs, but that when he left to do so, the interview was interrupted by Captain Scott, N.T. 6/7/79, 274, 281, 284-85 (Holton), N.T. 6/7/79, 313 (Moore), who was upset and ordered appellee to leave the room, so that the interview was ended. N.T. 6/7/79, 278-9, 281 (Holton), N.T. 6/8/79, 313 (Moore).
-I-
The first issue we must decide, as the threshold issue in an action for defamation, is whether the article published in the Inquirer could be understood as defamatory. It was the function of the lower court, in the first instance, to make this decision. If the court decided that the article could be understood as defamatory, then it became the jury's function to decide whether it was so understood by those who read it. Corabi v. The Curtis Publishing Co., 441 Pa. 432, 273 A.2d 899 (1971); Brophy v. Philadelphia Newspapers Inc., 281 Pa.Superior Ct. 588, 422 A.2d 625 (1980).
A publication is defamatory if it "tends to blacken a person's reputation or expose him to public hatred, contempt or ridicule or injury him in his business or profession." Cosgrove Studio and Camera Shop, Inc. v. Pane, 408 Pa. 314, 317, 182 A.2d 751, 753 (1962). In our view, it is beyond question that the article published in the Inquirer could be understood as defamatory. As we have described above, the article ran beneath a large photograph of a sergeant's squad car, which in turn appeared beneath a banner headline reading "Wide Police Corruption Revealed." If appellee were the sergeant in the car, and the article says this was "more likely than not," then the meaning conveyed by the article was that the photograph depicted appellee accepting a bribe, which would at the very least tend to injure appellee in his profession. See Brophy v. Philadelphia Newspapers Inc., supra (article suggesting that police commissioner and police officers shot and killed son of police chief as part of vendetta. [3] Compare Martin v. Municipal Publications, 510 F.Supp. 255 (E.D.Pa.1988) (), with Fogel v. Forbes, 500 F.Supp. 1081 (E.D.Pa.1980) ().
As to whether the article was understood as defamatory by those...
To continue reading
Request your trial