Pierce v. Capital Cities Communications, Inc.

• Decision Date: 07 February 1977
• Docket Number: Civ. A. No. 74-1248.
• Citation: 427 F. Supp. 180
• Parties: Alfred R. PIERCE v. CAPITAL CITIES COMMUNICATIONS, INC. and Richard Kellman.
• Court: U.S. District Court — Eastern District of Pennsylvania

427 F. Supp. 180

Alfred R. PIERCE v. CAPITAL CITIES COMMUNICATIONS, INC. and Richard Kellman.

Civ. A. No. 74-1248.

United States District Court, E. D. Pennsylvania.

February 7, 1977.

Henry Thomas Dolan, Philadelphia, Pa., for plaintiff.

Elihu A. Greenhouse, Gregory M. Harvey, Philadelphia, Pa., for defendant.

HIGGINBOTHAM, District Judge.

OPINION AND ORDER

Alfred R. Pierce, formerly a Commissioner of the Delaware River Authority and the Mayor of Camden, New Jersey, has brought this diversity action against defendants Capital Cities Communications, Inc., owner and operator of television broadcasting station WPVI-TV, and Richard Kellman, a television reporter employed by WPVI-TV, for an alleged defamation which occurred on November 20, 1973 when WPVI-TV televised a special program entitled "Public Bridges and Private Riches".

Plaintiff seeks a total of four million dollars in damages, including two million for punitive damages.

Defendants have filed a motion for Summary Judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. The parties have submitted affidavits, briefs, a transcript of the program, a videotape of the program which was shown at oral argument and several depositions. For the reasons stated herein, the defendants' motion for Summary Judgment is granted.

In granting defendants' motion, I recognize that Alfred R. Pierce may feel that careful and accurate reporting could have given him a better and more favorable image. I also know that with the extraordinary powers of the media, their occasional failure to pursue the highest standard of accuracy has caused many honorable and responsible persons to decline any options to serve in public office because they are not willing to have their honest efforts vilified by omissions, excesses or distortions. But, this issue has been answered by the United States Supreme Court which has held that as a matter of Constitutional law a public official may not recover:

. . . damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with `actual malice' — that is, with knowledge that it was false or with reckless disregard of whether it was false or not. New York Times v. Sullivan, 376 U.S. 254, 279-280, 84 S.Ct. 710, 726, 11 L.Ed.2d 686 (1964).

By this Constitutional standard, the defendants, as to their comments on Pierce, win — but merely by a scintilla. I hope that the media will never believe that a Constitutional right which precludes them from liability is a professional justification for sloppy reporting.¹ Obviously, I am aware of the problem of compressing complex factual data in a flashy television news setting. But hopefully, because of its instant and extraordinary impact with its abbreviated form, reporters should pursue an even higher level of responsibility. The defendant station's slogan "ACTION NEWS" should not become a synonym for "partially inaccurate news." The public deserves a better standard with or without the station's Constitutional immunity.

I

Mr. Pierce was appointed a commissioner of the Delaware River Port Authority by the Governor of New Jersey and served from June 4, 1962 until May 11, 1970; from 1969 until May 11, 1970 he served as Chairman of the Authority Plaintiff's Complaint ¶ 12. Plaintiff asserts that prior to the defendants' broadcast he ". . . was a person of good name, credit and reputation, both personally and professionally, and deservedly enjoyed the esteem and good opinion of his friends, acquaintances, business and professional associates, professional clients." He further alleges that he ". . deservedly enjoyed the reputation of being honest, competent, upright and responsible. . . ." Complaint ¶ 9

In approximately mid-August of 1973 defendant Kellman was authorized by his superior at Capital Cities, Mel Kampman, to prepare and produce a program to explore the activities of the Delaware River Port Authority and the performance of the Chairman, Ralph Cornell; this program was part of a series of news broadcasts on issues of public concern. Kellman Deposition, pp. 23, 24 and 39.

Fourteen statements made on the WPVI-TV broadcast form the basis of the plaintiff's defamation action:

¶ 15 "When Washington crossed the Delaware River, it was absolutely free. When Action News reporter, Richard Kellman, crossed the Delaware River, it cost him sixty cents. Washington's crossing brought us a nation. Kellman's crossing brought us some incredible findings that go right into your pockets. For 90 days now, Action News reporter, Richard Kellman has traveled the bridges of the Delaware River Port Authority and the high speed road to profit. In a minute, Action News presents PUBLIC BRIDGES AND PRIVATE RICHES but hold onto your dollars. After this program you may want to swim across the Delaware River".

WPVI-TV Transcript (TR.) Larry Kane, p. 1

¶ 18: "The first hint of what lay ahead came in August of 1969 when the commissioners were to vote on a contract for the bridge superstructure, the steel lattice work that would support the road way of this largest cantilever highway bridge in the U. S. Bethlehem and U. S. Steel were the only bidders with Bethlehem the low bidder at forty-seven million dollars . . . eight million above the engineers' estimate.

Kellman (K), TR. p. 3

"Action News obtained a copy of the Port Authority minutes of September 17, 1969. At that meeting, a motion was made to readvertise for new bids. Voting no, were Pa. commissioners Smith, Marsh and Crisconi. New Jersey commissioners voting no included Chairman Alfred R. Pierce and the present chairman Ralph Cornell."

K. TR. p. 5

¶ 20: "Bethlehem's bid was accepted and in 1969 construction began . . . Soon a fifty million dollar bridge had grown to one costing one hundred twenty million — a cost difference equivalent to 120 million bridge tolls at 60 cents each. And so . . . as the toll-payers shelled out nickels, dimes and quarters to pay for the project some Port Authority commissioners saw an opportunity for enormous profits, profits on land deals made possible by the very bridge motorists would be paying for well in the year 2000."

K. TR. p. 5

¶ 22: "For years . . . corporations have been buying up farmland, jockeying for position . . . waiting for the big land rush. Among the properties with identifiable owners . . . is the 90 acre plot off Route 322 . . where the expressway linking Route 130 and 295 will be built. The deed is recorded at the Gloucester County Courthouse in Woodbury. It shows the property is owned by Alfred R. Pierce . . . former Mayor of Camden and Port Authority Chairman at the time the Barry bridge was approved."

K. TR. p. 6

¶ 24: "While the bridges are beautiful, they also represent a threat to the environment that mass transit doesn't. Bridges encourage auto congestion. Trains promote efficiency which is why the Port Authority is especially proud of the Lindenwold Hi Speed Line. Fully automated, the Hi Speed Line pays for its operating costs through its fares. What it doesn't pay for is the ninety-three million it costs to build. That comes from motorists using the bridges . . .

* * * * * *

"This is the Ferry Ave. station of the Lindenwold Hi Speed line. The ground on which I am now standing is prime commercial property. In a few years there will probably be a high rise office building here. The land is owned by a combine called ABJ, Inc. Shareholders include former Camden mayor and Port Authority Chairman Alfred R. Pierce."

TR. K. p. 7, 8

¶ 26: "Because of the enormous debt the Port Authority owes . . . most commissioners have vowed never again to pay for mass transit through bridge tolls. Money must come from Washington and from the two states. An expansion must come slowly . . . to the Moorestown Mall . . . the Jersey Shore . . . and to Glassboro . . . by way of Woodbury. But not all three directions at once. There must be priorities.

"A Port Authority study recommended the Gloucester route to Woodbury where there are five acres of land owned by a corporation that includes as shareholders former Camden mayor and Port Authority Chairman Alfred Pierce and former Port Authority Commissioner John Crisconi of Phila. . .

"In Mid-October, Port Authority engineers confirmed their recommendation that the Woodbury station would be built here, adjacent to the property owned in part by Pierce, Crisconi and Cornell."

TR. K. p. 9

¶ 28: "I think that in this kind of position where you are obviously involved completely with the public's trust you have to go out of your way to prove your honesty by all of your actions. You cannot appear to be doing something dishonest even if you yourself feel that what you are doing is honest. I certainly would say that buying land raises doubts."

TR. Interviewee John Bunting, p. 10

¶ 30: "On October 12, director of bridges for the Port Authority, Andrew Ferenz, was fined and given a suspended jail sentence for using Port Authority building materials on his own home.

K., TR. p. 10

"And Andrew Ferenz is the brother-in-law of former Camden mayor and Port Authority Chairman, Alfred R. Pierce. Is it possible that people with such inter-locking interests can truly act in the public interest?"

K., TR. p. 11

¶ 33: "Is it necessary to have men of such enormous power and prestige to serve as commissioners when they get involved in projects which link them with Port Authority projects and make them look bad if the public is told about them?"

TR. K., p. 11

¶ 35: "By July first of next year, Gov.-elect Brendan Byrne of the state of N.J. will have six new appointments to the Delaware River Port Authority and Action News will be watching them closely and tonight we have a question. Will the background of the appointees be thoroughly checked out to avoid any possible future conflict of interest?

"Now before you take that swim across the Delaware River keep this in mind. The system of operations on the Port Authority can and might be changed. `Public

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