Hanish v. Westinghouse Broadcasting Co.

• Citation: 487 F. Supp. 397
• Decision Date: 17 March 1980
• Docket Number: Civ. A. No. 77-3171.
• Parties: Monroe HANISH v. WESTINGHOUSE BROADCASTING COMPANY.
• Court: U.S. District Court — Eastern District of Pennsylvania

487 F. Supp. 397

Monroe HANISH v. WESTINGHOUSE BROADCASTING COMPANY.

Civ. A. No. 77-3171.

United States District Court, E. D. Pennsylvania.

March 17, 1980.

Joseph D. Shein, Shein & Brookman, P. A., Philadelphia, Pa., for plaintiff.

Arthur E. Newbold, IV, Steven B. Feirson, Dechert, Price & Rhoads, Philadelphia, Pa., for defendant.

MEMORANDUM

RAYMOND J. BRODERICK, District Judge.

I.

This is an action for defamation brought before this Court on the basis of diversity jurisdiction. On December 30, 1977 defendant moved for summary judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure, on the ground that defendant was privileged to make the alleged defamatory publication. This Court denied defendant's motion, it appearing to this Court at that time that there existed a genuine issue of material fact. Thereafter, both parties undertook discovery and, on May 23, 1979, defendant filed this second motion for summary judgment. For reasons set forth herein, defendant's motion is denied.

II. UNDISPUTED FACTS

By letter dated February 10, 1976, plaintiff, representing himself as a member of the Board of Directors of the Muscular Dystrophy Association (M.D.A.), wrote to the Whitechapel Bell Foundry (Whitechapel) of London, England which had recently cast the "Bicentennial Bell". In this letter plaintiff proposed to Whitechapel that it sell to him the metal shavings or chips derived from the process of tuning the bell in order that he might package and sell individual pieces of the bell to the public as momentos of America's Bicentennial celebration. Plaintiff stated in the letter to Whitechapel that all profits from the sale of the shavings would go to M.D.A., but that since M.D.A.'s charter precluded expenditures of its capital for purposes which could be classified as "risk", his proposal would have to be carried out with private funds with the profits donated to M.D.A. On or about May 16, 1976, Whitechapel shipped 403 pounds of the metal shavings to plaintiff. Plaintiff took possession of the shavings and remitted the agreed price to Whitechapel.

As stated in his deposition, plaintiff subsequently contacted numerous individuals in an attempt to get his marketing scheme off the ground. Plaintiff ultimately entered into a partnership with two individuals, Feldman and Weidman. However, Whitechapel, believing that plaintiff was intending to sell the shavings for his own profit, brought an action on September 27, 1976 against plaintiff, Feldman, and Weidman in the United States District Court for the District of Massachusetts seeking to rescind the contract and to enjoin plaintiff from proceeding with the marketing of the shavings. The complaint in that action alleged, inter alia, that plaintiff herein had represented himself to Whitechapel as a Director of M.D.A.; that plaintiff herein was not then, and never has been, a director of M.D.A.; that plaintiff herein had proposed to Whitechapel that the profits from the sale of the shavings would go to M.D.A.; and that Whitechapel had only sold the shavings to plaintiff on the understanding that the profits would go to M.D.A. The Whitechapel complaint also alleged that plaintiff had obtained the shavings from it fraudulently, and that plaintiff, Feldman, and Weidman were engaged in a further fraudulent scheme to sell the shavings for their own profit.

On October 8, 1976, United Press International (U.P.I.) disseminated a news report concerning the complaint filed by Whitechapel. This report provided in pertinent part:

A London foundry which cast America's original Liberty Bell is suing to block a Bucks County firm from selling 403 pounds of chips carved off the Bicentennial Bell, England's birthday gift to the United States.

* * * * * *

In a suit filed Thursday in U. S. District Court, the London firm Whitechapel Bell Foundry Ltd. accused Manufacturer's Marketing Co. of Feasterville, Pa. of being involved in a "fraudulent scheme".

* * * * * *

Last February, the suit said, Monroe Hanish of New Jersey, representing himself as a director of The Muscular Dystrophy Association proposed to Whitechapel the purchasing of the chips or shavings derived from the tuning of the Bicentennial Bell.

Hanish was quoted as saying that all the profits of the sale of the chips would go to the Dystrophy Association.

Whitechapel said it agreed to sell 403 pounds of chips on the basis that profits would go to the Association . . ..

Whitechapel said it requested, but did not receive, a confirmation from Hanish that all the profits had gone to the fight against muscular dystrophy.

* * * * * *

Named as defendants with Hanish were Frederick M. Feldman and Harold R. Weidman, trading as Manufacturer's Marketing.

* * * * * *

On the same day, KYW television station in Philadelphia, which at all relevant times was owned, managed, operated and controlled by defendant Westinghouse Broadcasting Company, broadcast two news stories (one on its 5:30 p. m. news program, the other on its 11:00 p. m. news program) based on the above quoted report from U.P.I. The first of these broadcasts stated:

Money is the reason three Delaware County men are in hot water tonight.

The Whitechapel Bell Foundry of London . . . the firm that cast the latest Liberty Bell . . . has filed suit against the three . . . claiming they sold shavings of the bell for their own profit . . . rather than charity . . . as they promised the foundry they would.

The suit was filed against Monroe Hanish of New Jersey . . . and Frederick Feldman and Harold Weidman . . both of Pennsylvania.

The second broadcast, similar but not identical, stated:

The Whitechapel Bell Foundry of London has filed a Federal Court Suit against three Delaware Valley men.

Whitechapel, which cast the Bicentennial Liberty Bell, claims the three men sold shavings from the Bell for their own profit, rather than for charity, as they had told the foundry they would do.

These men are identified as Monroe Hanish of New Jersey, and Frederick Feldman, and Harold Weidman, both of Pennsylvania.

It is not disputed that plaintiff at no time sold the shavings for his own profit.

III. APPLICABLE LAW

Plaintiff complains in the instant action that the Whitechapel complaint did not allege that plaintiff had sold the shavings for profit rather than charity, and that defendant's broadcast had defamed him by stating that Whitechapel did so claim.

Defendant presents four grounds in support of its motion for summary judgment: first, that the broadcasts complained of were not defamatory; second, that even if defamatory, the broadcasts are privileged under the common law of Pennsylvania as having been made on a proper occasion, from a proper motive, in a proper manner, and based upon reasonable cause; third, that the broadcasts are privileged under the common law of Pennsylvania as a fair and accurate report of a judicial pleading; and, fourth, that the plaintiff is a public figure and that he cannot make the showing of actual malice required of public figures by the First Amendment to the Constitution of the United States to recover damages for defamatory falsehoods.

Jurisdiction being based on diversity of citizenship, this Court shall look to the law of the Commonwealth of Pennsylvania and insofar as applicable, to the First Amendment to the Constitution of the United States in disposing of this summary judgment motion.

A. The Defamatory Character of the Broadcasts

In an action for defamation in Pennsylvania, the plaintiff has the burden of proving both the defamatory character of the communication and the understanding by the recipient of it as intended to be applied to the plaintiff. Pa.Cons.Stat.Ann. tit. 42, § 8343 (1979). Procedurally, it is the function of the court to determine, in the first instance, whether the communication complained of is capable of a defamatory meaning. Franklin Music Co. v. American Broadcasting Co. et al, 616 F.2d 528 at 540 (3d Cir., 1979); Corabi v. Curtis Publishing Co., 441 Pa. 432, 442, 273 A.2d 899, 904 (1971); Restatement (Second) of Torts § 614. "A communication is defamatory if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from dealing with him." Franklin Music, supra; Corabi, supra at 442, 273 A.2d at 904; Cosgrove Studio and Camera Shop, Inc. v. Pane, 408 Pa. 314, 318, 182 A.2d 751, 753 (1962); Restatement (Second) of Torts § 559 (1977).

In the instant case, there is no question as to the content of the alleged defamatory broadcast and it clearly appears that the communication is capable of a defamatory meaning in that it does state that plaintiff was accused by Whitechapel of having sold the shavings for his own profit, rather than charity as promised. "The test is . . . the impression the publication would naturally engender, in the minds of the average person among whom it is intended to circulate." Boyer v. Pitt Publishing Co., 324 Pa. 154, 157, 188 A. 203, 204 (1936). Looking at the broadcast in this manner, it can fairly be taken to mean that plaintiff had breached his promise to Whitechapel, and that he had appropriated to his own use, money that was intended to go to charity. Such an accusation is capable of tending to so harm the reputation of plaintiff as to lower him in the estimation of the community or to deter third persons from associating with him. Although it is the function of the court under Pennsylvania law to determine whether the communication complained of is capable of a defamatory meaning, it is the function of the jury to determine whether a communication, capable of a defamatory meaning, was so understood. Corabi, supra at 442, 272 A.2d at 904.

B. Defendant's Claim of Common Law Privilege

Defendant claims that the KYW broadcasts were privileged under the common law of Pennsylvania as a "substantially fair and accurate" report of a judicial proceeding. See Binder v. Triangle Publications, Inc., 442 Pa. 319, 275...