Weinstein v. Bullick

• Decision Date: 15 June 1993
• Docket Number: Civ. A. No. 92-5127.
• Parties: Sarah WEINSTEIN v. Richard BULLICK and CBS, Inc. d/b/a WCAU-TV.
• Court: U.S. District Court — Eastern District of Pennsylvania

827 F. Supp. 1193

Sarah WEINSTEIN v. Richard BULLICK and CBS, Inc. d/b/a WCAU-TV.

Civ. A. No. 92-5127.

United States District Court, E.D. Pennsylvania.

June 15, 1993.

COPYRIGHT MATERIAL OMITTED

Joe H. Tucker, Jr., Martina Walsh McLaughlin, Litvin, Blumberg, Matusow & Young, Philadelphia, PA, for plaintiff.

Lek Domni, Paula S. Silverstein, Asst. City Sols., Philadelphia, PA, for Richard Bullick.

Jeffrey D. Kahn, Schnader, Harrison, Segal & Lewis, Carl A. Solano, Schnader, Harrison, Segal & Lewis, Philadelphia, PA, Douglas P. Jacobs, Douglas P. Jacobs, Esq., Madeleine Schachter, New York City, for CBS, Inc.

MEMORANDUM

GILES, District Judge.

Plaintiff brings claims against defendants for defamation, invasion of privacy, and intentional infliction of emotional distress. Jurisdiction is based upon diversity of citizenship and the case is governed by Pennsylvania law. Defendants have filed motions for summary judgment. For the reasons stated below, both motions are granted in part and denied in part.

I. FACTUAL AND PROCEDURAL BACKGROUND

The complaint alleges that Sarah Weinstein ("Weinstein") was abducted in November 1991 from a street in the City of Philadelphia by an unknown assailant who thereafter sexually assaulted her. Following her release by her abductor, plaintiff complained to the Philadelphia Police Department, giving officers of the Sex Crimes Unit a detailed description of the assault in a recorded interview.

Richard Bullick ("Bullick") was commanding officer of the Sex Crimes Unit at the time of the above described events. In an on-camera interview with reporters from WCAU-TV, Bullick made statements which Weinstein alleges defamed her. She further alleges that Bullick knew that his statements were improper, erroneous, misleading, untrue and defamatory. WCAU-TV broadcasted Bullick's remarks throughout the Philadelphia area on its evening news program. Weinstein alleges that Bullick's statements were broadcast by WCAU in spite of the fact that WCAU knew or should have known that the information contained in the broadcast was erroneous, misleading, untrue, and defamatory.

Based upon the above-described allegations, Weinstein brought the instant action against Bullick and WCAU, claiming defamation, see Complaint Count I, invasion of privacy by casting her in a false light, see Count II, and intentional infliction of emotional distress, see Count III. Defendants have moved to dismiss the complaint, or in the alternative, for summary judgment. In an Order dated February 8, 1993, the court informed the parties that it would consider defendants' motions to be for summary judgment, and gave plaintiff time to file additional evidence in opposition to defendants' motions. See Fed.R.Civ.P. 12(b) (if matters outside the pleading are submitted with 12(b)(6) motion, the motion shall be treated as Rule 56 motion, and parties given reasonable opportunity to present pertinent material). Weinstein filed several additional evidentiary items, and we now consider the motions.

II. STANDARD FOR SUMMARY JUDGMENT

Summary judgment is to 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 judgment as a matter of law." Fed.R.Civ.P. 56(c). Where, as here, the non-moving party has the burden of proof at trial, the movant need not produce evidence negating the nonmovant's case. Instead, the moving party need only demonstrate that there is a lack of any evidence to support the non-movant's claim. Celotex Corp. v. Catrett, 477 U.S. 317, 323-25, 106 S.Ct. 2548, 2552-54, 91 L.Ed.2d 265 (1986). Once the movant satisfies this initial burden, the non-movant cannot rest solely upon the allegations of her pleadings. Fed.R.Civ.P. 56(e). Instead, she must demonstrate that there is sufficient evidence for a jury to return a verdict in her favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510-11, 91 L.Ed.2d 202 (1986). The court must determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id., 477 U.S. at 251-52, 106 S.Ct. at 2512. With these general considerations in mind, we will examine each count of the complaint.

III. DEFAMATION

Under Pennsylvania law, a plaintiff in a defamation action has the burden of proving: (1) the defamatory character of the communication; (2) its publication by the defendant; (3) its application to the plaintiff; (4) the understanding by the recipient of its defamatory meaning; (5) the understanding by the recipient of it as intended to be applied to the plaintiff. 42 Pa.C.S. § 8343(a); U.S. Healthcare, Inc. v. Blue Cross of Greater Philadelphia, 898 F.2d 914, 923 (3d Cir. 1990), cert. denied, 498 U.S. 816, 111 S.Ct. 58, 112 L.Ed.2d 33 (1990); Restatement (Second) of Torts § 613. Defendants argue that the statements by Bullick were not defamatory because they were merely expressions of opinion. Defendants also assert that, even if the statements were defamatory, plaintiff cannot establish that they applied to her. Because there is a genuine issue of material fact with respect to each of these contentions, the motions for summary judgment on the defamation claim will be denied.

A. The Defamatory Character of the Publication

The threshold question in a defamation action is whether the publication is capable of defamatory meaning. Whether a broadcast can be understood as defamatory is for the court to decide. Baker v. Lafayette College, 516 Pa. 291, 532 A.2d 399, 402 (1987); Steaks Unlimited, Inc. v. Deaner, 623 F.2d 264, 270 (3d Cir.1980); Corabi v. Curtis Pub. Co., 441 Pa. 432, 442, 273 A.2d 899, 904 (1971); Restatement (Second) of Torts § 614(1). If the court determines that a statement could be construed as defamatory, it is for the jury to determine if it was so understood by the recipient. Corabi, 441 Pa. at 442, 273 A.2d at 904; Redco Corp. v. CBS, Inc., 758 F.2d 970, 971 (3d Cir.1985), cert. denied, 474 U.S. 843, 106 S.Ct. 131, 88 L.Ed.2d 107 (1985); Restatement (Second) of Torts § 614(2).

"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 associating or dealing with him." Corabi, 441 Pa. at 442, 273 A.2d at 904 (quoting Cosgrove Studio & Camera Shop, Inc. v. Pane, 408 Pa. 314, 318, 182 A.2d 751, 753 (1962)); accord, Steaks Unlimited, 623 F.2d at 270; Restatement (Second) of Torts § 559. In determining whether a statement is capable of defamatory meaning, the court must look to "the effect that it 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." Baker, 516 Pa. at 296, 532 A.2d at 402; accord Corabi, 441 Pa. at 447, 273 A.2d at 906-07. The allegedly defamatory statement must be reviewed in the context of the entire broadcast. Pierce v. Capital Cities Communications, Inc. 576 F.2d 495, 502 (3d Cir.1978), cert. denied, 439 U.S. 861, 99 S.Ct. 181, 58 L.Ed.2d 170 (1978); Corabi, 441 Pa. at 444-45, 273 A.2d at 906; Restatement (Second) of Torts § 563, Comment d. "The words must be given by judges and juries the same signification that other people are likely to attribute to them." Corabi, 441 Pa. at 447, 273 A.2d at 907.

Defendants argue that Bullick's statements are not capable of defamatory meaning because they are merely expressions of opinion. It is true that "opinion without more does not create a cause of action in libel." Baker, 516 Pa. at 297, 532 A.2d at 402; accord Restatement (Second) of Torts § 566. The protection of "pure" opinion has a Constitutional basis:

Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas.

Gertz v. Robert Welch, Inc., 418 U.S. 323, 339-40, 94 S.Ct. 2997, 3007, 41 L.Ed.2d 789 (1974). However, this does not mean that there is "a wholesale defamation exception for anything that might be labeled `opinion.' ... Expressions of `opinion' may often imply an assertion of objective fact." Petula v. Mellody, 138 Pa.Commw. 411, 588 A.2d 103, 108 (1991) (quoting Milkovich v. Lorain Journal Co., 497 U.S. 1, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990)).

Because "expressions of `opinion' may often imply an assertion of objective defamatory fact," statements of opinion are actionable if the allegedly libeled party can "demonstrate that the communicated opinion may reasonably be understood to imply the existence of undisclosed defamatory facts justifying the opinion." Baker, 516 Pa. at 297, 532 A.2d at 402; accord, Restatement (Second) of Torts § 566. The rationale behind this rule has been succinctly explained by the third circuit:

An opinion which is unfounded reveals its lack of merit when the opinion-holder discloses the factual basis for the idea. If the disclosed facts are true and the opinion is defamatory, a listener may choose to accept or reject it on the basis of an independent evaluation of the facts. However, if an opinion is stated in a manner that implies that it draws upon unstated facts for its basis, the listener is unable to make an evaluation of the soundness of the opinion.

Redco, 758 F.2d at 972.

With these general considerations in mind, we examine the content of the allegedly defamatory broadcast. It is undisputed that the following is the transcript of the November 7, 1991 broadcast in its entirety:

Jane Robelot:¹ And tonight authorities are investigating a complicated case of abduction and rape that allegedly occurred last Friday. Channel 10 News reporter Andrew Glassman has learned that while the Philadelphia Sex Crimes Division is actively

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