Salerno v. Philadelphia Newspapers, Inc.

• Decision Date: 22 August 1988
• Citation: 377 Pa.Super. 83,546 A.2d 1168
• Parties: , 15 Media L. Rep. 2416 Joseph SALERNO and Juliet Salerno, Appellants, v. PHILADELPHIA NEWSPAPERS, INC. t/a Philadelphia Daily News, Appellee.
• Court: Pennsylvania Superior Court

Page 1168

546 A.2d 1168

377 Pa.Super. 83, 15 Media L. Rep. 2416

Joseph SALERNO and Juliet Salerno, Appellants, v. PHILADELPHIA NEWSPAPERS, INC. t/a Philadelphia Daily News, Appellee.

Superior Court of Pennsylvania.

Submitted April 20, 1988.

Filed Aug. 22, 1988.

[377 Pa.Super. 85] Michael T. Grimes, Philadelphia, for appellants.

Katherine L. Hatton, Philadelphia, for appellee.

Before OLSZEWSKI, KELLY and HOFFMAN, JJ.

KELLY, Judge:

This is an appeal from an order of the trial court dated October 8, 1987, granting summary judgment in favor of Philadelphia Newspapers, Inc., defendant/appellee, and against Joseph and Juliet Salerno, plaintiffs/appellants. We affirm.

On February 22, 1983, the plaintiffs instituted this action against Philadelphia Newspapers, Inc., as a result of an article published by the appellee which appeared in the Philadelphia Daily News on August 12, 1982. In their amended complaint, the appellants alleged three causes of action: defamation, intentional infliction of emotional distress, and negligent infliction of emotional distress. The appellee subsequently filed preliminary objections alleging, inter alia, that the words printed in the article were not capable of defamatory meaning or capable of supporting a cause of action for intentional or negligent infliction of emotional distress. The Honorable Thomas A. White overruled the appellee's objections on January 5, 1984, without an opinion.

The case proceeded in its discovery phase for more than three years before any further determination was made. Based on the fruits of the discovery which occurred during this time, the appellee moved for summary judgment on March 25, 1987. Judge Berel Caesar granted the appellee's motion by an order dated May 13, 1987. This appeal followed.

The facts which gave rise to this case may be summarized as follows. On Tuesday, August 10, 1982, Joseph Salerno, Sr., one of the two appellants, was shot in the neck by an unidentified gunman while in a hotel in Wildwood Crest, New Jersey. Philadelphia Newspapers, Inc. reported this incident on the front page of the August 12, 1982 edition of the Philadelphia Daily News. The headlines to this article read " 'Canary's' Dad Shot," "Son Testified Against Mob Figure Scarfo," and "Mob Takes Revenge: Witness' Father Shot." The text of the article attributed statements to unnamed Wildwood Crest police sources, inferring an organized crime retaliation motive behind the shooting. In addition, the article cited two occasions in which the appellants' son, Joseph Salerno, Jr. testified against Nicodemo Scarfo, a reputed member of organized crime.

On appeal, the appellants' contend that the trial court erred in granting summary judgment upon finding that material published by the appellee was not capable of defamatory meaning and likewise not capable of supporting an action for intentional or negligent infliction of emotional distress when a court of coordinate jurisdiction had ruled that it was capable of both in denying appellee's preliminary objections. The appellants also contend that the trial court erred by concluding appellants failed to sustain the burden of establishing the existence of a material question of fact regarding the falsity of the challenged statements in response to a motion for summary judgment in a defamation action.

I.

In support of their first claim, appellants argue that the lower court was precluded from granting the appellee's motion for summary judgment because the denial of appellee's preliminary objections settled the issues of whether the challenged article was capable of defamatory meaning and whether the pleadings supported causes of action for intentional and/or negligent infliction of emotional distress. The appellants urge that because the earlier ruling held that both causes of action could be sustained upon the allegations in the complaint, the trial court was bound by that prior determination upon review at the summary judgment stage. We cannot agree.

Ordinarily, a trial judge should not place himself in the position to overrule a decision by another judge of the same court in the same case. Melendez v. City of Philadelphia, 320 Pa.Super. 59, 62, 466 A.2d 1060, 1062 n. 2 (1983) ( citing Duffy v. Gerst, 286 Pa.Super. 523, 429 A.2d 645 (1981)). The purpose of this rule is to ensure a degree of pretrial finality "so that judicial economy and efficiency can be maintained." Commonwealth v. Eck, 272 Pa.Super. 406, 409, 416 A.2d 520, 522 (1979) ( quoting Commonwealth v. Griffin, 257 Pa.Super. 153, 157, 390 A.2d 758, 760 (1978)). However, the rule is not intended to preclude granting summary judgment following denial of preliminary objections. "The failure to present a cause of action upon which relief can be granted may be raised at any time. A motion for summary judgment is based not only upon the averments of the pleadings but may also consider discovery depositions, answers to interrogatories, admissions and affidavits." Austin J. Richards, Inc. v. McClafferty, 371 Pa.Super. 269, 538 A.2d 11, 14-15, n. 1 (1988). We can discern no reason for prohibiting the consideration and granting of a summary judgment if the record as it then stands warrants such action. Cf. DiAndrea v. Reliance Savings and Loan Ass'n, 310 Pa.Super. 537, 543, 456 A.2d 1066, 1069 (1983). This is particularly true when the preliminary objections were denied without an opinion. Farber v. Engle, 106 Pa.Cmwlth. 173, 525 A.2d 864 (1987). Moreover, where, as here, dismissal of the entire complaint on motion for summary judgment is appropriate, preclusion of consideration of the summary judgment motion by application of the rule stated, would have further burdened the parties and the court by requiring them to undergo the time and expense of an unnecessary trial, and thereby thwart the very purpose the rule was intended to serve, i.e. that judicial economy and efficiency be maintained. Thus, we reject appellant's first contention on appeal.

II.

We now turn to an examination of the propriety of the order granting summary judgment on the causes of action for defamation, intentional infliction of emotional distress, and negligent infliction of emotional distress. We address each seriatim.

Our role in the review of summary judgment orders is well established. This Court in McClafferty, supra, pronounced that standard as follows:

A motion for summary judgment may properly be granted only 'if 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). See also Rybas v. Wapner, 311 Pa.Super. 50, 54, 457 A.2d 108, 109 (1983); Williams v. Pilgrim Life Insurance Co., 306 Pa.Super. 170, 172, 452 A.2d 269, 270 (1982). In passing upon a motion for summary judgment, the court must examine the record in the light most favorable to the nonmoving party. Pocono International Raceway, Inc. v. Pocono Produce, Inc., 503 Pa. 80, 82-83, 468 A.2d 468, 470 (1983); Zimmerman v. Zimmerman, 322 Pa.Super. 121, 124-125, 469 A.2d 212, 213 (1983); Wilk v. Haus, 313 Pa.Super. 479, 482, 460 A.2d 288, 289-290 (1983).

McClafferty, supra, 538 A.2d at 13 ( quoting Thorsen v. Iron and Glass Bank, 328 Pa.Super. 135, 140-141, 476 A.2d 928, 930-931 (1984)). Moreover, it is clear that to survive a motion for summary judgment, the non-moving party may not rely merely upon the controverted allegations of the pleadings, "but must set forth specific facts by way of affidavit, or in some other way as provided by the rule, demonstrating that a genuine issue exists." Ressler v. Jones Motor Co., Inc., 337 Pa.Super. 602, 609, 487 A.2d 424, 429 (1985) ( citing Phaff v. Gerner, 451 Pa. 146, 303 A.2d 826 (1973); Pa.R.C.P. 1035(d)).

A.

In an action for defamation, this Court has held that it is the function of the trial court, to make a threshold determination of whether the challenged publication is capable of defamatory meaning, and if the communication is not capable thereof, there is no reason for the matter to proceed to trial. Dobson by Dobson v. WBRE TV, Inc., 347 Pa.Super. 612, 614, 500 A.2d 1226, 1227 (1985) ( citing Thomas Merton Center v. Intern Corp., 497 Pa. 460, 442 A.2d 213 (1981) cert. denied 457 U.S. 1134, 102 S.Ct. 2961, 73 L.Ed.2d 1351 (1982)); see also Corabi v. Curtis Publishing Company, 441 Pa. 432, 273 A.2d 899 (1971); Agriss v. Roadway Express, Inc., 334 Pa.Super. 295, 306, 483 A.2d 456 (1984); Beckman v. Dunn, 276 Pa.Super. 527, 419 A.2d 583 (1980); Restatement (Second) of Torts § 614(1) (1977).

"A publication is defamatory if it tends to harm the reputation of another so as to lower him in the estimation of the community or deter third persons from associating and dealing with him." Baker v. Lafayette College, 350 Pa.Super. 68, 76, 504 A.2d 247, 251 (1986) ( citing Rybas v. Wapner, 311 Pa.Super. 50, 457 A.2d 108 (1983)). It is not sufficient if the words are merely embarrassing or annoying to the plaintiff. Agriss v. Roadway Express, Inc., supra; Beckman v. Dunn, supra. Moreover, liability in an action for defamation is not dependent upon the author's intent. Agriss v. Roadway Express, Inc., supra. In determining whether a newspaper article is defamatory, "the trial court must decide whether it can reasonably be construed to have the libelous meaning ascribed to it by the complaining party." Zartman v. Lehigh County Humane Soc., 333 Pa.Super. 250-51, 482 A.2d 266, 269 (1984) (citing Corabi, supra; Rutt v. Bethlehems' Globe Publishing Co., 335 Pa.Super. 163, 484 A.2d 72 (1984)). Our Supreme Court has explained:

The test is the effect the article is fairly calculated to produce, the impression it would naturally engender, in the minds of the average persons among whom it is intended to circulate. The words must be given by judges and juries the same significance that other peopl...