Larsen v. Philadelphia Newspapers, Inc.
| Decision Date | 21 February 1992 |
| Citation | 602 A.2d 324,411 Pa.Super. 534 |
| Parties | Rolf LARSEN, Appellant, v. PHILADELPHIA NEWSPAPERS, INC., Knight-Ridder Newspapers, Inc., PG Publishing Co., William Block, Paul Block, Jr., Daniel R. Biddle, Edwin Guthman, Sam S. McKeel, Fritz Huysman, Eileen Foley, John G. Craig, Jr., and Robert Surrick. |
| Court | Pennsylvania Superior Court |
David J. Armstrong, Pittsburgh, for appellant.
Thomas B. Rutter, Philadelphia, for Surrick, appellee.
Before OLSZEWSKI, JOHNSON and FORD ELLIOTT, JJ.
On this appeal, we are asked to determine whether summary judgment was properly granted an individual defendant in an action claiming defamation and invasion of privacy. Appellant, Rolf Larsen, a member of the Pennsylvania Supreme Court, filed his Fourth Amended Complaint against Philadelphia Newspapers, Inc.; Knight-Ridder Newspapers, Inc.; Daniel R. Biddle; Edwin Guthman; Sam S. McKeel; PG Publishing Co.; William Block; Paul Block, Jr.; Fritz Huysman; Eileen Foley; John G. Craig, Jr. (collectively, PN/PG defendants); and Robert Surrick.
The basis of the cause of action asserted against Surrick was an allegation that he acted in concert with, or as mutual agent of, the PN/PG defendants in publishing defamatory articles regarding Larsen, and that Surrick invaded the privacy of Larsen by turning over confidential transcripts to the PN/PG defendants which resulted in the publication of transcript excerpts that cast Larsen in a false light. Following discovery, Surrick moved for, and was granted, summary judgment, prompting this appeal.
Surrick was a member of the Judicial Inquiry and Review Board (JIRB) during an investigation of Larsen. Surrick, through his attorney James Eiseman, Jr., filed a petition entitled, "In re proceedings of the Judicial Inquiry and Review Board concerning 'XYZ' a certain member of the Judiciary," with the Pennsylvania Supreme Court. The petition was filed regarding the investigation of Larsen. The PN/PG defendants published articles regarding the disposition of that petition which are allegedly defamatory of Larsen as the articles state that Larsen breached the canons of judicial ethics by participating in the decision of a case in which he was personally involved.
In response to Surrick's motion for summary judgment, Larsen presented an affidavit of Patrick Tassos, a former deputy prothonotary of the Pennsylvania Supreme Court, which averred that Surrick was in the prothonotary's office with Daniel Biddle, an employee of the PN defendants, when the "XYZ" petition was filed. Surrick presented the affidavit of Attorney Eiseman, which averred that Eiseman, rather than Surrick, filed the "XYZ" petition, and the docket entries confirming that fact. Eiseman's affidavit further averred that neither Surrick nor Biddle was present when the "XYZ" petition was filed. Surrick also presented his own affidavit and the answers to interrogatories of the PN/PG defendants which stated that Surrick had not delivered a copy of the transcripts of the JIRB proceedings to the PN/PG defendants.
It is undisputed that the PN/PG defendants published articles containing excerpts from the confidential JIRB transcripts. The PN/PG defendants' answers to interrogatories averred that Surrick was not involved in the editorial decision to publish the transcript excerpts.
On this appeal, Larsen asks us to review whether the most distinguished trial judge, the Honorable Albert E. Acker, S.J., since retired, committed error in granting Surrick's motion for summary judgment. Larsen contends that Judge Acker erred by ruling that there were no material questions of fact and that the pleadings and other documents would not support a conclusion that Surrick did act individually or in concert with any of the other defendants in defaming Larsen as alleged in Count III of the Fourth Amended Complaint or in intruding upon Larsen's privacy by placing him in a false light, as alleged in Count V of the Complaint. Larsen argues that the trial court erred by reading the record to favor the moving party and applying the incorrect standard to judge his burden as to the defamation claim. As to the invasion of privacy claim, Larsen argues that the trial court granted summary judgment in violation of the Nanty-Glo rule. After a careful review of the record and the arguments of the parties, we affirm the summary judgment.
We are mindful that this appeal involves only Count III and Count V of the Fourth Amended Complaint and only those portions of Count III and Count V that implicate Surrick. We do not review, nor express any opinion concerning, the validity of the Fourth Amended Complaint as it seeks to impose liability on any named defendants other than Surrick.
The original complaint had been filed in equity, contained seven counts within one hundred twenty-nine numbered paragraphs, and sought an injunction as well as money damages on various theories of liability. On an earlier appeal to this court, following preliminary objections and the filing of an amended complaint, we were called upon to consider whether, inter alia, a private cause of action existed for an alleged breach of the confidentiality provisions of Article V, Section 18(h) of the Pennsylvania Constitution. Larsen v. Philadelphia Newspapers, Inc., 375 Pa.Super. 66, 543 A.2d 1181 (1988) (en banc ) alloc. denied, 520 Pa. 597, 552 A.2d 251, and in 520 Pa. 606, 553 A.2d 968 (1988), cert. denied, 489 U.S. 1096, 109 S.Ct. 1568, 103 L.Ed.2d 935 (1989). We were also asked to decide whether the amended complaint stated a cause of action for invasion of privacy under Section 652B of the Restatement (Second) of Torts and for invasion of privacy: false light under Section 652E. On that prior appeal, we also considered whether the Act of July 9, 1976, P.L. 586, No. 142, § 2, as amended and renumbered 42 Pa.C.S. § 4135, dealing with out-of-court publications respecting the conduct of judges, created a separate cause of action for defamation.
While holding that the amended complaint then under review did set forth a cause of action for invasion of privacy: false light against the news media defendants, we declined to find private, independent causes of action for alleged breach of the confidentiality provisions of the Pennsylvania Constitution or for violation of the statute dealing with out-of-court publication of a judge's conduct in connection with a matter pending before any tribunal. Id.
We have carefully reviewed the entire certified record and the briefs of the parties. We have had the benefit of oral argument from distinguished members of the bar on behalf of both Larsen and Surrick. We are unable to discern any genuine issues as to any material facts. We find that Surrick is entitled to judgment, on this record, as a matter of law. We therefore affirm the order dated December 7, 1990, entered December 10, 1990, as well as the judgment entered January 2, 1991, in favor of Surrick and against Larsen.
Our Supreme Court has recently set forth the principles governing the grant or denial of a motion for summary judgment as follows:
Summary judgment is properly granted where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Pa.R.C.P. 1035(b). An entry of summary judgment may be granted only in cases where the right is clear and free from doubt.... The moving party has the burden of proving the nonexistence of any genuine issue of material fact.... The record must be viewed in the light most favorable to the nonmoving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party....
Rule 1035 also provides that Pa.R.C.P. 1035(d) (Emphasis added). Therefore, where a motion for summary judgment has been made and properly supported, parties seeking to avoid the imposition of summary judgment must show by specific facts in their depositions, answers to interrogatories, admissions or affidavits that there is a genuine issue for trial....
Marks v. Tasman, 527 Pa. 132, 135, 589 A.2d 205, 206 (1991) (citations omitted). As to our scope of review, we will overturn entry of summary judgment by the trial court only if there has been an error of law or a clear abuse of discretion. Tonkovic v. State Farm Mutual Automobile Ins. Co., 407 Pa.Super. 522, 524, 595 A.2d 1269, 1270 (1991). With these basic principles in mind, we review the matter now before us.
In his Statement of the Case, Brief of Appellant, pages 5-6, in accordance with Pa.R.A.P. 2117(a)(4), Larsen sets forth the following statement of facts necessary to be known in order to determine the points in controversy:
Count III of the Fourth Amended Complaint alleges the following: On April 29, 1983, Surrick filed with the Supreme Court of Pennsylvania a document which was captioned "Application of Robert B. Surrick, a Member of the Judicial Inquiry and Review Board, in RE: Proceedings of the Judicial Inquiry and Review Board Concerning 'XYZ' a Certain Member of the Judiciary" (hereinafter referred to as the "XYZ Petition") and titled the document "Application for Leave to File Petition." (R. 30a). The XYZ Petition did not identify the member of the Judiciary who was the subject of the JIRB Inquiry.
On Friday, May 6, 1983, the Supreme Court, including Appellant, voted 5 to 2 to deny the XYZ...
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