*1 it back and threw up the gun He picked to the ground. who police When the of the car. seat onto the back they the car, searched immediately at the scene were par- which was a .22 Derringer gun found this gun Townsend’s the front seat on under concealed tially under shotgun found a police subsequently side. hood. neither Giambi; was tried with jointly Townsend be- in their presented nor was evidence testified, I that Townsend was It undisputed, repeat, half. in addition to himself, contained in the which car, in the one and three guns, driver Giambi and Miller front on the passenger and one seat back seat side. in his have to be caught gun
Does Townsend hand or his on the finger trigger? par- all the facts and in this
Under circumstances incomprehensible ticular to me how naive case, and unrealistic a of this Court can be about majority I Townsend’s would affirm guilt. the conviction and of sentence judgment case which Townsend of and possession was convicted sentenced for of a fire- arm without a license. Appellant,
Kernick, Dardanell Press. *2 J.,C. Before Bell, 1967. September 28, Argued Rob- and O’Brien Eagen, Cohen, Jones, Musmanno, JJ. erts, appellant. for Tarter, J.
William Clarke, him Birsie & Gauley, with Birsie, II. Iran appellees. for him Thom- Bredin, with Pringle, Grigsby,
Herbert for appellees. Grigsby, & Rhodes son, 1967:
Opinion November Musmanno, Mr. Justice trespass brought a suit The this case others, and Dardanell Press, charging defendant, objec- preliminary libel. filed The defendants of Common tions the Court which were sustained appealed. Pleas the plaintiff Allegheny County, elected is the Mrs. T. Phyllis Kernick, plaintiff, functions township auditor of the of Penn Hills, in April, It time appears as such. some town- with one Mrs. Kernick had a conversation allegedly ship who commissioners, George Taylor, III, would the commissioners said to Mrs. Kernick that if “easy road into her she went property build a on June At a commissioners meeting audit.” con- asserted Mrs. this Kernick referred 7, 1966, *3 the commis- At subsequent meeting versation. com- again Mrs. Kernick sioners July 11, 1966, explained on the now colloquy Taylor mented who spoken had said Mrs. Kernick was that he to tvhatever in jest. commissioners, board of three the
Nevertheless, Tobay, Alfred and Wm. Charles'(cid:127) C. Ireland Williams,. to County asked the District Attorney Allegheny if into Mrs. Kerniek’s to ascertain charges investigate himself such had conducted Taylor Commissioner prosecu- as to initiation of criminal fashion warrant in- after an appropriate tion. The district attorney, that found reported justify he to nothing vestigation, against Taylor. proceedings criminal the three On named commissioners August 28, that stating statement Mrs. issued a Kernick had her substantiate outrageous “failed to accusation.” her further that remarks had They said cal- “carefully the Township disparage to and its culated officials,” cost the taxpayers utterances money in that her order investigation her an conduct charges, “even though her they consistently that baseless,” turn out to be “peculiar suppressing unex- the facts” were actions in explanation township plained, “an the that she owed hope in the finally, that “we of her and that actions,” manner in a herself Kernick will conduct future Mrs. public befitting official.” an elected published Progress” newspaper and “The A entitled printed by commissioners’ the the Dardanell Press, attorney’s story on the district as well as statement, injured plaintiff investigation. felt herself The news- brought of the the owners suit libel newspaper, the papers, the editor-in-chief already stated, As three named commissioners. preliminary pleas ob- sustained court of common jections declaring that filed the defendants, cause of action. had failed to state a appears of form- Kernick did not know
It that Mrs. oft-quoted Harry remark Truman’s er President S. you stay kitch- “If out of the can’t stand the heat, may en.” issued the commissioners The statement pot political Hills to boil Penn have caused the apparent township, not it at such but boiled top temperature off the and scalded Mrs. that it blew burned her to traumatic extent. or even Kernick, person target of unkind words bound who is exaggerates he or often to feel but she his hurt, damage or her the extent of the done to his her mind many reputation mind. The in the has linger things and it think and talk does not about, *4 township may occur at debate which commis- meeting on a statement issued commis- sioners’ of an altercation. in the heat sioners sensation commissioners’ statement Whatever ap- any may not have could endured for caused have compared ripples period. be preciable It could to the passing by the of a caused which rowboat, in the water tranquilizes quickly dipping rippling after the oars momentary agitation. their A minute ceased have suggest nothing to in the water there is written later, passed blithely Thus, surface. its serene what had over be it is not for Kerniek’s lawsuit, had it been Mrs. many Hills in Penn there would be doubted whether pools township mem- of their who could fish out dispute. ory Kernick-Commissioners the details by the assertion offended Mrs. Kernick felt herself befitting in a manner “conduct herself that she should public be- manner is the an elected official.” What public fitting Emily down laid Post has officials? No public And officials. for elected a code of manners public appointed for officials? there a different code is empty a football If there is one field that is as as gridiron has tumult and the after the teams have left befitting away, it the field of manners died subject, specified There code on this officials. is no up although, obviously, built there are certain rules proper years indicating generally over the what improper in commissioners, officialdom. The way Mrs. or if no indicated at all, however, how, pro- implied had deviated from code Kernick priety.
If statement of the commissioners had accused dishonesty incompetence in her Kernick of or of Mrs. the situation could have been different. Mrs. work, protection good entitled to the of her name: Kernick is my name in man and “Good dear lord, woman, jewel the immediate their souls: Is my purse steals steals trash; Who ’tis something, nothing; ’tis and has been mine, his,
’Twas slave thousands; my good from filches me But he name not of that which me enriches Robs him, poor indeed.”1 me makes
And III, Othello, III. Sc. Act *5 man’s a protect law stands a guardian as in the sweat good name earned in of the heat battle, but and in laboratory conscience, the work, order cannot prescribe hospitalization for abrasions for a surgery hiccough. at- remark explained
Commissioner that the Taylor tributed to him spoken jest. Kernick by Mrs. was It could have been humor there on the but oblique, some rationalization to support non-scintillating his bon conducting since the audit Mrs. Kernick mot, was was that of 1965 and not a commissioner Taylor was in 1965. a he had to hide nothing by building Thus, road over it.
If Taylor was he is not the first who joking, person failed to heed admonition the that “one Cicero, should be moderate his To tell fiscal of- jests.” ficer to wear dark glasses when returns checking to spring joke that can appear backfire. It would that the for attorney the indulged has, himself, in some whimsical when he badinage says his brief that the defendants’ use of the word was “Auditor,” “a deliberate play words.” He the suggests public did not know whether the statement referred to Mrs. Kernick as an is one who auditor, listens, or an one who auditor, examines accounts. Obviously, the statement referring was to Mrs. Kernick’s official position as auditor of Penn Hills and not township, poor as a listener to the related jokes by Commissioner Taylor.
Even Mrs. Kernick never explained so, if why, she regarded Taylor’s alleged quips an attempt as to im- influence her her properly she work, waited from to inform April to June the board of township commis- of Taylor’s alleged sioners whisperings of a highway the Christmas tree of under if promise, she looked at while ceiling auditing Commissioners’ books 1965. accepting even that,
The court below concluded out not set complaint did averred facts to be true, of action. a cause *6 Pa. 186 Inc.,
In Courier Pub. Co., Richwine v. Pgh. defi the approved Court Superior Ct. the Superior 644, namely, nition of in the lower Court, libel as given “ publication, ‘Libel be defined malicious may as signs, or or words printed by painted, which, written, hatred expose person contempt, tends to a to ridicule, not are the words or of character. Where degradation of dubious in in but are themselves as this case, libelous, the by innuendo, and their is averred import meaning truth of the for wheth jury. However, innuendo is the of capable er or not the or writing fairly reasonably is for of law question found in nature a being libelous is re been the has question and after such only court, the for solved it become a of fact question then does ” jury.’ of “The function The Court then Superior said: of in the forth the Restatement court and set jury The court determines ‘(1) the 614, Section Law, Torts, of a capable defamatory whether a communication is a com- determines whether meaning. (2) jury capable of a so defamatory was munication, meaning, ” recipient.’ understood its in at to the case bar the as Certainly question in the controverted statements were libelous whether of for Court. In question nature a law the was v. Warner-West 349 Pa. Corporation, Sarkees “ ‘It A. 2d this Court said: is the duty determine whether in cases to the language court all article could objectionable in the and rea fairly used to have the imputed be construed meaning sonably If the words are not susceptible of the innuendo. the to them the plaintiff and ascribed do not meaning the case should not be innuendo, the sent to sustain ” a jury.’ expounding recently law the Chief Justice Bell, of 415 Pa. Allen, 484,” libel of v. case Clark quoted approval Volomino said what was Messenger Publishing “In a def 611: 410 Pa. Co., in the amation court, the function of the case, not the com first determine whether instance, defamatory complained capable munication of of a ” meaning.’ “Notwithstanding And then said: the fact period long for law libel been settled a has well Supreme has States Court of the United time, concept meaning recently greatly broadened the (of press freedom) speech and freedom has applied greatly meaning narrowed the of libel when official or candidate for office. See *7 York New 254.” Times v. 376 U.S. Sullivan, quoted Chief New York Justice then from the Bell “ Times case: ‘A state cannot under the First and damages Fourteenth to a Amendments award defamatory relating official for falsehood of- his proves ficial conduct he “actual unless malice”—that falsity knowledge the statement of was made with its disregard or or with reckless of whether it was true ” false.’ Opinion concurring In in a the Clark v. Allen case, my Justice Jones “In York said: New Times view, Company 376 U.S. 84 Ct. com- S. Sullivan, 710, mands this result.” by
The statements made the commissioner defend- any in do not ants the case at bar come within of the accepted today. in definitions of libel the law libel as slightest in Nor is there the evidence the record that 2 cage, Joseph brought S. In that Senator Clark an action of persons against who had written three libel circulated a letter they made the statement: “We are shocked in which at Joe approved absenteeism and his A.D.A. on Senate record Clark’s communist voting its tendencies.” with record any by Progress malice motivated was plaintiff com- plaintiff. of which The two articles, by demon- plains, and unencumbered factual were coloring chron- they were without strated bias, episode happening of the unfolded icle events adjectival completely devoid of and were discussion, which description, or observation, comment or adverbial fiction. into tortious at times turn fact can appraised properly entire this The court below tempest episode hurricane in a bowl or a as a fish judgment teapot, affirmed. and its a Eagen concur O’Brien Mr. and Mr. Justice Justice in the result. Opinion
Concurring Roberts: Mr. Justice majority opinion, Contrary not believe I do to the v. Sul Times York case is controlled New that this Although (1964). 84 S. Ct. 376 U.S. livan, alleged clearly defamation involves the the case although I aware that am well official, prove requires Times v. Sullivan such (i.e., perpetrated malice actual with that the libel was knowledge or with was false statement not), disregard nev it was false of whether reckless quite Times v. clear I to make it ertheless wish change toas in our substantive law no Sullivan made merely but direct was libel, constitute what statements involving proof plaintiff’s cases burden to the ed *8 pres public alleged the a official. Since defamation of appeal from the lower court’s sustain comes to us ent preliminary objections, ing must ac we of defendant’s plaintiff’s allegations factual in cept, all the true, as complaint Paragraph complaint. 14 of that recites: by charges the made Defendants All “14. writing the Plaintiff made are false and said charges said well knew to he untrue all Defendants supplied.) (Emphasis question, Without made.” when
297 satisfy proven allegation, the if at would trial, this requirement the as of malice Times v. Sullivan actual Supreme the has defined Court of the United States term. majority agree that the I the
Nevertheless, objec- preliminary properly these lower court sustained ground defend- that the but I do on the sole so tions, thisAs a matter of law. ant’s article is not libelous as Pa. Herald, Court in Bausewine v. Norristown said (1945) for the : “It [is] 41 A. 2d 634, 643, writings say, court to matter of whether the as a law, they meaning. capable If in suit of a libelous [are] jury’s duty to determine then the [are], [becomes] they meaning Re- whether The such fact.” [have] deter- statement Torts also court “[t]he recites capable mines defama- whether a communication is of a tory meaning.” §614(1). Restatement, Torts, precise Pennsylvania’s most statement of law public the issue of a remark directed toward a when Biggs’ opin- Judge officer can be libelous found in Sweeney Philadelphia ion in Record 126 F. Co., (3d 1942). plain- diversity 2d 53 Cir. In that action complaint newspaper tiff based his on a article which charged plaintiff, Congressman, an Ohio had been prevent leading campaign certain individual’s appointment prospec- federal bench the because the jurist tive was “a Jew and one not born in the United affirming sustaining In the trial States.” court’s Judge defendant’s said: “In demurrer, short un- Biggs Pennsylvania in order der the law of to constitute libel published per se the misconduct asserted matter criminal nature at must be of a least such as would the removal warrant officer from his of- improper person him an or render fice to hold alleged by really The misconduct office. libel must derogation pub- the oath of office be taken 2d especially 126 F. at officer.” 54-55. This lic test, *9 298 finding with those cases conjunction considered
when me that convinces capable being libelous, a statement lawsuit. this support the article here cannot challenged 42 A. 2d 204 Clark v. 415 Pa. Compare Allen, had record voting that senator’s (1964) (statement Weis not libelous) Communist tendencies held & C. v. Wilkes-Barre Pa. D. carger Independent 75 Co., plain C.P. that 1950) (statement 481 (Luzerne County hall would controller had that tiff-city “city threatened keep a watchful if X-business eye the business” woman did not fire plaintiff’s political adversary, Y, D. held not v. 35 Pa. Thompson libelous), Farley, & ac C. 2d 157 C.P. (Bucks County 1964) (statement capable found cusing plaintiff and extortion bribery Turner v. 17 Pa. D. being libelous), Intelligencer Co., & C. 2d 236 C.P. (Montgomery County 1959) (facts similar to v. Record Thompson, Battles supra), Publishing Co., 1956) 40 Erie L.J. 132 Cty. (C.P. J.) (newspaper plaintiff-police article charging (Laub, man with drinking beer during duty speakeasy hours held capable of a defamatory meaning).
In the present case, newspaper alleged article be libelous is more than an accusation that nothing plaintiff thus over-zealous, and is over-suspicious, in- wasting taxpayers’ money by up needless stirring The article vestigations. but it does not critical, come even close charging with such acts as would lead to her from removal office. As this Court Bogash said 405 Pa. Elkins, 176 A. 2d 437, 440, : (1962) “Statements represent which differ- opinion ences of are annoying or embarrassing, are, not without libelous.” more, Plaintiff, however, alleges “more” that there is here. Her complaint invokes the of innuendo theory whereby seemingly innocuous re- mark can become libelous because of certain inferences would naturally draw from it. Specifi- she claims a reader of cally, this article would as- actually sume directed that the criticism was performance township her rather than as a auditor, *10 over-suspicious agree that her nature. I cannot cursory read- such an inference is reasonable. Even a ing of this article convince reader that the would plaintiff’s performance attack not aimed at of her was official duties as auditor. An innuendo must be war- publication. justified supported by Bo- ranted, gash supra; Corp., v. Sarkees v. Warner-West Elkins, (1944). 349 Pa. 37 A. This one is not. 2d 544 365, As Mr. Chief Justice said Mc v. Maxey Andrew Republican Publishing Scranton 364 Pa. 72 A. Co., every (1950), 2d 780 lie a libel.” “[n]ot With this artfully phrase heartily turned I concur. Holiday &
Lambert Inc. Intreri, Motor Hotel, Appellant. Inc., Argued Before Musmanno, 1967. November JJ. Roberts, O’Brien Cohen, Eagen,