Norton v. Glenn

• Decision Date: 18 March 2002
• Parties: James B. NORTON, III, Alan M. Wolfe and James J. Marlowe v. William T. GLENN, Sr., Troy Publishing Company, Inc., Tom Kennedy and William M. Caufield Appeal of: Alan M. Wolfe. James B. Norton, III, Alan M. Wolfe, and James J. Marlowe v. William T. Glenn, Sr., Troy Publishing Company, Inc., Tom Kennedy and William M. Caufield Appeal of: James B. Norton, III.
• Court: Pennsylvania Superior Court

797 A.2d 294

James B. NORTON, III, Alan M. Wolfe and James J. Marlowe v. William T. GLENN, Sr., Troy Publishing Company, Inc., Tom Kennedy and William M. Caufield

Appeal of: Alan M. Wolfe.

James B. Norton, III, Alan M. Wolfe, and James J. Marlowe v. William T. Glenn, Sr., Troy Publishing Company, Inc., Tom Kennedy and William M. Caufield

Appeal of: James B. Norton, III.

Superior Court of Pennsylvania.

Argued December 11, 2001.

Filed March 18, 2002.

Reargument Denied May 20, 2002.

William T. Wilson, West Chester, for Wolfe.

Geoffrey R. Johnson, Philadelphia, for Norton.

Michael E. Baughman, Philadelphia, for Troy Publishing.

Before JOYCE, OLSZEWSKI and MONTEMURO¹, JJ.

JOYCE, J.

¶ 1 James B. Norton III and Alan M. Wolfe (Appellants) appeal from the judgment entered on a jury verdict in favor of Troy Publishing Company, Tom Kennedy, and William Caufield (Appellees).² For the reasons more fully set forth below, we vacate the judgment, reverse the order denying Appellant's motions for a new trial, and remand the matter for a new trial.

¶ 2 The relevant facts and procedural history of the case were clearly and cogently set forth in the trial court opinion.

The genesis of this lawsuit is an article that appeared in the newspaper the Chester County Daily Local on April 20, 1995. The article, headlined "Slurs, insults drag town into controversy" involved the fallout from a special meeting of the Parkesburg Borough Council which had been held the previous evening. On that date, council president, plaintiff James Norton, sought to "end the fighting and name calling" which had been occurring at council meetings. The article published comments made by defendant Glenn, then also a member of council, about Norton, Parkesburg Mayor Alan M. Wolfe, and Borough Solicitor James J. Marlowe. In the article, defendant Glenn characterized Wolfe and Norton as "queers" and "child molesters" and quoted him as calling plaintiff Marlowe a "shyster Jew." The article was written by defendant Tom Kennedy, then an employee of the Daily Local, which is owned by defendant William Caufield and published by defendant Troy Publishing. Plaintiffs subsequently filed suit for defamation and false light invasion of privacy.

Prior to trial, all defendants filed motions for summary judgment. By order dated August 2, 1999, the Honorable Paula Francisco Ott granted defendant Glenn's motion for summary judgment as to plaintiff Marlowe, and denied the motion as to plaintiffs Norton and Wolfe. Judge Ott also denied the motion for summary judgment filed by Troy Publishing Company, Tom Kennedy and William Caufield, but ordered that the jury at the trial of this matter "be instructed on the fair report privilege."[³]

Trial began before a jury on March 27, 2000. On March 31, 2000, the jury returned a verdict in favor of plaintiff Norton and against defendant Glenn and awarded $10,000 compensatory and $7,500 punitive damages. The jury returned the identical verdict as to plaintiff Wolfe. Defendants Troy Publishing Company, Tom Kennedy and William Caufield (the media defendants) were found not liable to plaintiffs.

Trial Court Opinion, 01/19/2001, at 1-3 (footnote added).

¶ 3 Appellants timely filed post-trial motions requesting a new trial as to Appellees. The trial court denied Appellants' post-trial motions. Appellant, Norton filed a praecipe to enter judgment on the verdict, and said judgment was entered February 12, 2001. Appellant Wolfe filed a praecipe to enter judgment on the verdict, and said judgment was entered February 5, 2001. Appellants timely appealed.

¶ 4 The standard of review applied when evaluating the grant or refusal of a new trial is settled. We may reverse the decision of the trial court if it abused its discretion or committed an error of law that controlled the outcome of the case. Haddad v. Gopal, 787 A.2d 975 (Pa.Super. 2001).

¶ 5 The question of paramount importance in this matter, and the thrust of Appellants' appeal, focuses on whether the Commonwealth of Pennsylvania should adopt the neutral reportage privilege that was applied by the trial court.⁴ As with any question of law, this Court's scope of review is plenary. See id. With this issue in mind, we will begin our discussion.

¶ 6 While the neutral reportage privilege that was applied by the trial court has Constitutional ramifications, it is not found anywhere in the United States Constitution or in any amendments thereto. The privilege does not appear in the Pennsylvania Constitution or in any Pennsylvania statutory law. Instead, the neutral reportage privilege was first recognized in Edwards v. National Audubon Society, 556 F.2d 113, 120 (2nd Cir.1977). In Edwards, the United States Court of Appeals for the Second Circuit stated:

when a responsible, prominent organization like the National Audubon Society makes serious charges against a public figure, the First Amendment protects the accurate and disinterested reporting of those charges, regardless of the reporter's private views regarding their validity. See Time, Inc. v. Pape, 401 U.S. 279, 91 S.Ct. 633, 28 L.Ed.2d 45 (1971)

; Medina v. Time, Inc., 439 F.2d 1129 (1st Cir.1971). What is newsworthy about such accusations is that they were made. We do not believe that the press may be required under the First Amendment to suppress newsworthy statements merely because it has serious doubts regarding their truth. Nor must the press take up cudgels against dubious charges in order to publish them without fear of liability for defamation.

Edwards, supra at 120.

¶ 7 Simply put, we find that Edwards misconstrues Time, Inc. v. Pape, supra.⁵

Time, Inc. v. Pape was a suit for libel based on Time Magazine's republication of part of the 1961 United States Commission on Civil Rights Report (the Report). The Report republished allegations made by a Mr. James Monroe where he claimed he was brutalized at the hands of the Chicago Police Department in a civil complaint filed in federal court. Frank Pape, the Deputy Chief of Detectives of the Chicago Police Department, sued Time Magazine since the republication did not say that the allegations were from a civil complaint, and it created the appearance that Mr. Monroe's allegations were factual findings by the United States Commission on Civil Rights. The issue decided by the United States Supreme Court was whether Time's omission of the word "alleged" showed actual malice. The Supreme Court determined that Time's failure did not rise to the level of actual malice. This case did not alter the rule announced in New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964).⁶

¶ 8 Time, Inc. v. Pape did not carve out a privilege allowing "prominent" organizations expanded rights, it did not alter the law of defamation depending on who is speaking, and it did not espouse a rule that disregarded the private views of the reporter regarding the validity of what is reported.

¶ 9 Dickey v. CBS Inc., 583 F.2d 1221 (3rd Cir.1978), while not binding, is persuasive with respect to the fact that Edwards was an overly expansive interpretation of Time, Inc. v. Pape. In Dickey v. CBS Inc., the United States Court of Appeals for the Third Circuit squarely rejected the neutral reportage privilege and the expansive interpretation that the Edwards court imputed to Time, Inc. v. Pape. Dickey, supra at 1225, 1226. Time, Inc. v. Pape did not alter the long-standing rule enunciated in New York Times v. Sullivan, supra.

¶ 10 Despite the history of the neutral reportage privilege, there are jurisdictions that apply some form of the privilege. These jurisdictions include: the Eighth Circuit, Price v. Viking Penguin, Inc. (8th Cir.1989) 881 F.2d 1426, cert. denied, 493 U.S. 1036, 110 S.Ct. 757, 107 L.Ed.2d 774 (1990); the United States District Court for the Southern District of New York, Coliniatis v. Dimas, 965 F.Supp. 511, 520 (S.D.N.Y.1997); and the United States District Court for the Northern District of California, Barry v. Time, 584 F.Supp. 1110, 1127 (N.D.Cal.1984).⁷ ¶ 11 However, as we stated above, this privilege does not appear in the United States Constitution, the Pennsylvania Constitution, or in any Pennsylvania statutory law. Our research has uncovered no Pennsylvania case adopting the neutral reportage privilege. As stated above, DiSalle is the only reported Pennsylvania case that mentions neutral reportage but only as dicta. See DiSalle, supra. Furthermore, none of the decisions in any of the jurisdictions that have adopted the privilege are binding on this Court. Therefore, the ultimate question is whether or not Pennsylvania adopts the neutral reportage privilege? We answer this question in the negative.

¶ 12 We find the neutral reportage privilege was borne out of a misconstruction of Time, Inc. v. Pape, and we are not persuaded to adopt this privilege in the Commonwealth of Pennsylvania. Since the trial court found that this privilege applied, based evidentiary rulings on this premise, and instructed the jury as such, it committed an error of law that controlled the outcome of the case.⁸

¶ 13 Judgment vacated. Order denying Appellant's motion for a new trial reversed. Case remanded for a new trial consistent with this opinion. Jurisdiction relinquished.

¶ 14 MONTEMURO, J., files Concurring Opinion.

CONCURRING OPINION BY MONTEMURO, J.:

¶ 1 I join the Majority's conclusions that no neutral report privilege exists as such in Pennsylvania and that this case must be returned for retrial. I write separately, however, to note the analytical framework for proving abuse of the fair report privilege, which is and has remained unarguably viable for some time. See Sciandra v. Lynett, 409 Pa. 595, 187 A.2d 586 (1963)

; DeMary v. Latrobe Printing and Publishing Company et al., 762 A.2d 758 (Pa.Super. 2000),

appeal denied, 786 A.2d 988 (Pa. 2001).

¶ 2 As the Majority accurately points out, the trial court regarded the two privileges as synonymous, their differences as...