text:
    447 A.2d 1381
    Lawrence J. DRAGUN and Linda S. Dragun, his wife Appellants, v. Vincent VOLK and Diana Volk, his wife.
    Superior Court of Pennsylvania.
    Argued March 17, 1981.
    Filed April 23, 1982.
    Reargument Denied Aug. 6, 1982.
    Petition for Allowance of Appeal Granted Sept. 13, 1982.

      Behrend, Aronson and Morrow, David M. Moran, Pittsburgh, for appellants.
    Charles Kirshner, Pittsburgh, for appellees.
    Before PRICE, BROSKY and MONTEMURO, JJ.
   MONTEMURO, Judge:

The instant matter presents an interesting problem of interpretation of the No-Fault Motor Vehicle Insurance Act of July 19, 1974, P.L. 489.

Although the case has several minor questions to be resolved, the central issue demands judicial interpretation of the language of § 1009.301(a)(5)(B), which provides that, although tort liability is partially abolished, a tort-feasor remains liable for non-economic detriment where:

the reasonable value of reasonable and necessary medical and dental services, including prosthetic devices and necessary ambulance, hospital and professional nursing expenses incurred in the diagnosis, care, and recovery of the victim, exclusive of diagnostic X-ray costs and rehabilitation costs in excess of one hundred dollars ($100), is in excess of seven hundred fifty dollars ($750) . . . (Emphasis supplied)

The lower court, in a well-reasoned, thoughtful opinion determined on the facts and law that the plaintiffs’ pleadings do not present any genuine issue of a material fact, nor did they seek to oppose the properly supported Motion for Summary Judgment of the defendants. The Motion for Summary Judgment was granted, and this court affirms.

The plaintiffs, husband and wife, were injured in an automobile accident by a vehicle driven by the female defendant and owned by the male defendant. Both plaintiffs alleged “serious and permanent” injuries; wife further alleged medical, dental, hospital and nursing expenses in excess of $750.00, excluding diagnostic X-ray and rehabilitation costs in excess of $100.00. Both plaintiffs claimed damages on each of the four counts “in excess of $10,000.”

Defendants filed Answer and New Matter, averring that the complaint failed to state a cause of action under the No-Fault Act, and they thereafter served interrogatories upon the plaintiffs and took depositions.

The lower court found that the husband in deposition readily admitted to his total reliance upon a medical report as the only document on which he based his allegation of “serious and permanent injury.” It further found that the medical doctor stated at defendant’s final examination on December 20, 1976, “I find no debility in this regard [lower back pain] by current examination.” A similar report, by wife’s dentist, was accorded equivalent treatment by the trial court. Noting that the doctor’s prognosis was “at best unpredictable” and that in the 29 months since the report was written no follow-up dental work had been needed, the court held that the record certainly did not “connote a serious and permanent injury.”

Further, the trial court noted that the plaintiffs were entitled under Pa.R.C.P. 1035(d) to contradict the properly pleaded allegations in the Answer, but that they had not chosen to amplify the record with further specific facts to show that the injuries sustained presented genuine issues of fact as to their seriousness and permanency. Where the plaintiff does not respond, Rule 1035(d) provides that summary judgment, “if appropriate, shall be entered against him.” The lower court found the pleadings did not present a genuine issue for litigation as to seriousness and permanency for presentation and that summary judgment on that issue was appropriate. We agree.

The more intriguing issue is presented by the wife’s second claim on her injuries. She avers, in an effort to cross the $750.00 threshold provided in Section 301(a)(5)(B), that she has paid out $595.47 in expenses which, if proven, are undisputed as valid under the Act. In addition, she lists another $558.20 in expenses that defendant alleges came under the wording “exclusive of diagnostic x-ray costs and rehabilitation costs in excess of one hundred dollars ($100).” Defendant, therefore, would allow but $100 from the second group of bills and avers that wife’s allowable medical expenses therefore are at the most $695.47, and are manifestly short of the $750.00 threshold.

Wife concedes that the list contains a diagnostic x-ray and a brain scan which are in the excluded category. However, she asserts that the expenses of the physical therapist and of the dynamic cerebral, both prescribed by her medical doctor, should be included.

The dynamic cerebral may be dealt with briefly: the court below found that “this is a diagnostic tool utilizing x-rays” and should be excluded under the wording that specifically excludes “diagnostic x-ray costs.” The court’s opinion weighs the plaintiffs’ viewpoint as well, and its discretion in reaching the result it reached was not misapplied. There is no mystery to be unveiled to a jury for this threshold decision. Either the process is or is not a diagnostic procedure involving x-ray. The court below claims to have reviewed all matters “exhaustively,” and in the light “most favorable to plaintiff.” This court has no difficulty in accepting its finding that the $75.00 paid for a “dynamic cerebral” was in the category eliminated in law for inclusion in the $750.00 necessary under 301(a)(5)(B).

The expenses of the physical therapist are also at issue. Plaintiffs’ Brief in Opposition to Motion for Summary Judgment (R.Doc. # 19, p. 4) correctly quotes the volume edited by D. Shrager, The Pennsylvania No-Fault Act, pp. 218-19 (1979), in which the text speculates:

It would seem that there would be no reason why out-patient physical therapy prescribed by a physician, although administered by a registered physical therapist, should not be considered a medical service for the purpose of computing expenses includable in the $750.00 threshold, again without reference to the $100.00 sub-limit.

The related problem of whether the expenses of chiropractic services could be counted toward the $750.00 threshold was treated by the Supreme Court in the recently filed case of Miller v. Johnson and Strunack v. Ecker, consolidated for appeal and argued at No. 80-3-503, filed Nov. 18, 1981, 496 Pa. 290, 436 A.2d 1187. The court determined that chiropractic expenses were in fact includable in the threshold amount.

That decision, however, is not determinative of the matter at bar, for chiropractors (like doctors and dentists whose services are unquestionably included in the threshold amount) are approached directly by the patient and maintain an office wherein they are ordered by statute to display the certificate of the state permitting their practice. See 63 P.S. § 620. In contrast, physiotherapists are forbidden by statute to practice independently, but are limited to treating patients referred to them by a licensed physician, dentist, or podiatrist, 63 P.S. § 1309.

Upon careful review of the problem, we have concluded, as did the court below, that contrary to the speculation of the Shraeger text, and in contrast to the holding of the Supreme Court on chiropractic services, physiotherapy expenses cannot be included in the $750.00 threshold amount.

The first line of inquiry into the meaning of any statute must be the plain words of the statute. 1 Pa.C.S.A. 1921(a) and (b).

Turning to the Act itself, therefore, examination of the “Findings and Purposes” as set forth therein brings this wording to our attention:

¶ 102(a)(6). Careful studies, intensive hearings and some State experiments have demonstrated that a basic system of motor vehicle accident and insurance law which:
A. Assures every victim payment of all his basic medical and rehabilitation costs, and recovery of a reasonable amount of work loss, replacement services and survivor’s loss; and
B. Eliminates the need to determine fault except when a victim is very seriously injured,
is such a low-cost, comprehensive, and fair system, (emphasis supplied).

At Section 103, these “medical and vocational rehabilitation services”, unquestionably due in repayment of expenses to every victim, are defined as follows:

. . . services necessary to reduce disability and to restore the physical, psychological, social and vocational functioning of a victim. Such services may include, but are not limited to, medical care, diagnostic and evaluation procedures, physical and occupational therapy, other necessary therapies, speech pathology . . . [etc.] . . .

The choice of words in § 102 implies two major categories of treatment: “medical” and “rehabilitational.” At § 103 “rehabilitational” is further described as “vocational,” and, in the still more precise definition following, the category of “medical care” is again listed, but other possible services are now divided into a number of categories:

(1) diagnostic and evaluative procedures;
(2) physical and occupational therapy; and
(3) “other necessary” therapies.

Returning to review of the language of the tort liability section set forth at the beginning of this opinion, we again note that the tort-feasor is to remain liable for the non-eeonomic detriment when the expenses of treatment, as measured by a certain legislatively-given formula, are over $750.00. On closer inspection it is apparent that the formula breaks naturally into three parts:

(1) “reasonable and necessary medical and dental services including prosthetic devices” (included).
(2) “necessary ambulance, hospital and professional nursing expenses incurred in the diagnosis, care, and recovery of the victim (included).
(3) “diagnostic x-ray costs and rehabilitation costs in excess of one hundred dollars” (excluded).

We are required, if possible, to give effect to all the terms of the provisions. 1 Pa.C.S.A. 1921(a). We must, therefore, find a difference between expenses of “diagnosis, care and recovery” and expenses of “diagnostic x-ray and rehabilitation.” The former are admitted to the $750 threshold in toto and the latter only to a limit of $100.00.

The language, taken as a whole, indicates that “recovery” expenses are those tied into hospitalization and professional nursing and are completely includable, while “rehabilitation” expenses connote “diagnostic and evaluative procedures,” “physical and occupational therapy” and other “necessary therapies” as described in § 103. These are recompensed by the terms of § 102, but are not includable (except for $100.00) under § 301(a)(5)(B).

Plaintiffs’ therapy expense is not claimed as medical, dental, or prosthetic. It was not incurred in payment of an independently practicing professional such as a chiropractor or podiatrist, or for recovery under professional nursing care or hospitalization. It falls into the third category, being, specifically, physical therapy, and as such it is excluded under § 301(a)(5)(B).

Since any phrase that requires such extensive analysis has a claim to “ambiguity” this court has confirmed its result by review of the legislative history and the circumstances surrounding the statute’s enactment. 1 Pa.C.S.A. 1921(c).

Certain members of the Legislature were unhappy at the $100.00 limitation in the proposed version of the law and argued vigorously to change the proposed wording to permit inclusion of all “reasonable and legitimate” rehabilitation expenses. A portion of the arguments are set forth below:

We have in the Commonwealth people who specialize, perhaps, in the treatment of illness, and particularly after an accident, using rehabilitation methods ... I know of people, and I am sure you do also, who have been involved in accidents where they have had hip injuries perhaps or ankle or knee injuries, and they are in need of these services and this type of treatment. I fail to understand why the insurance industry insists that it be limited to $100.
The effect of this amendment would be to lift that restriction, and if,-indeed, people have $750 worth of medical bills, then they meet the requirements of the bill with respect to threshold.
Thank you.
Mr. President, I have not heard a word yet on this amendment about the truly legitimate victim of an automobile accident—the victim, for example, who is required by his physician to go into the hospital on a weekly basis to take therapy for his neck or his back, and without that therapy he simply cannot continue to function. These, as Mr. Wise has indicated, are the overwhelming majority. Why are we penalizing that victim for the mistakes or the chicanery of a few? If we are truly interested in helping the victims of automobile accidents, then why are we going to penalize the vast majority of them who receive therapy which is absolutely, critically essential for their well-being and their health? Legislative Journal—House, Vol. I, No. 126, pp 2108ff (1974).

Obviously, these members interpreted the wording as excluding from the $750.00 limit the ongoing therapeutic treatment of legitimate injuries by qualified persons at the order of a medical doctor.

The proponents of the proposed wording (eventually the wording of the Act as passed) took the same view of the meaning of the exclusionary language, despite their diametrically opposed opinion as the usefulness of the exclusions.

Mr. Speaker, the amendment just offered by Mr. Ryan would further weaken the threshold. We have already weakened it considerably by ripping out of the bill the preclusion of pleadings.
Now the bill does not prevent the payment of x-ray costs and rehabilitation. It merely allows them to figure $100 for those services against the threshold. Honestly, the x-rays and the rehabilitation are two areas where a person can have to take hot baths every day for a week or a month or anything to build up these things. That is the reason it is in there, to give some credence to the threshold, because if you rip that out—Mr. Ryan is surprised at me for thinking people would cheat—this is one area where it is easy for a doctor to take a man to the hospital and x-ray all over his body for a broken finger or anything else.
I hope you do not further weaken the threshold in this bill because it already has been weakened. I ask for a negative role. Id.

The emphasized language in the above quotation brings forcibly back to mind the stated purposes of the Act— prompt payment of all basic medical and rehabilitation costs along with elimination of fault actions unless injury is very serious. Pain and suffering was considered. Rehabilitation as essential and as physician-prescribed was considered. Yet, the legislative vote rejected these arguments in favor of providing low-cost, comprehensive, fair relief for victims.

In the interesting case of Singer v. Sheppard, 464 Pa. 387, 346 A.2d 897 (1975), on remand Singer v. Sheppard, 33 Pa.Cmwlth. 276, 381 A.2d 1007 (1978), the Supreme Court found the denial of basic loss benefits coverage to motorcyclists to be valid and not unconstitutional, although motorcyclists are required to purchase no-fault insurance, yet retain only the tort remedy, unlike any other user or passenger of a motor vehicle.

After stressing the legislative intent to provide prompt and reasonably-priced insurance coverage, and after pointing out that all accident victims benefit from those general purposes, the court stated as follows:

The reasonableness of the particular amount chosen as the point of segregation is a matter peculiarly legislative. The establishment of boundaries for varied treatment is a function oft-performed by the Legislature and seldom questioned by the courts. ... We will not and cannot measure the wisdom of this selection. Id. 346 A.2d at 905 [citation omitted].

“Keeping down expenses” is thus a well-recognized, legitimate legislative purpose.

The legislators did not wander naively into this wording of the Act. As seen supra, the division of expenses that could be counted toward the threshold and those that could not was a hard-fought issue. The expenses of plaintiff-wife do not fall into the “recovery” category associated with independent professional medical services, hospitalization and professional nursing, but with the “rehabilitation” category including “physical”, “occupational” and “other necessary” therapies. As such, her expenses do, of course, fall into the broad category of the services repaid to “every” victim under § 102(a)(6)(A), but for purposes of § 301(a)(5)(B) these expenses are excluded for the $750.00 threshold once the $100.00 limitation is fulfilled.

The lower court’s finding that plaintiff does not reach the threshold sum of $750.00 required to permit her the tort remedy under § 301(a)(5)(B) is correct.

We have examined the lower court’s decision for summary judgment, as we must, in the light most favorable to appellant. Carollo v. Forty-Eight Insulation, Inc., 252 Pa.Super. 422, 381 A.2d 990 (1977). We are convinced that no issues of material fact remained to be litigated, and we therefore affirm the dismissal on Defendants’ Motion for Summary Judgment.

      . We note that the Miller court, mentioned supra, at one point in its opinion stated: “We are unwilling to conclude that the Legislature could have intended chiropractic expenses to be included, on the one hand, under basic loss benefits coverage, but excluded, on the other, for purposes of determining whether a tort action .. . can be maintained.” Insofar as such a statement may imply that the terms of § 103 and § 301(a)(5)(B) are in all respects identical, we disagree for the reasons set forth at length in this opinion.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    447 A.2d 1386
    COMMONWEALTH of Pennsylvania v. Roger MORGAN, Appellant.
    Superior Court of Pennsylvania.
    Argued May 20, 1981.
    Filed April 30, 1982.
    Reargument Denied Aug. 2, 1982.
    Petition for Allowance of Appeal Denied Oct. 1, 1982.
    William Gleason Barbin, Johnstown, for appellant.
    Oliver E. Mattas, Jr., Assistant District Attorney, Altoona, for Commonwealth, appellee.
    Before MONTGOMERY, HOFFMAN and VAN der VOORT, JJ.
   PER CURIAM:

The convictions for corruption of the morals of a minor at Nos. 374 and 375 of 1979 are reversed. The conviction for indecent assault at No. 379 of 1979 is reversed. The judgments of sentence at Nos. 374, 375, 376, 377, 379, and 380 of 1979 are affirmed.


author: BROSKY, Judge: SPAETH, Judge,

text:
    447 A.2d 1387
    COMMONWEALTH of Pennsylvania v. Lisa POINDEXTER, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 21, 1980.
    Filed July 16, 1982.

      Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.
    Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before SPAETH, BROSKY and VAN der VOORT, JJ.
   BROSKY, Judge:

On January 24, 1979, appellant, Lisa Poindexter, was found guilty, by a jury, of arson, criminal conspiracy and burglary. Post-verdict motions were subsequently filed and denied. Poindexter was sentenced to serve a term of imprisonment of five to ten years. This appeal followed.

Poindexter raises four questions on appeal. First, she asserts that the trial court erred in refusing to discharge her under Pennsylvania Rule of Criminal Procedure 141(d). Second, that the trial court erred in not discharging her under Pennsylvania Rule of Criminal Procedure 1100. Third, that the Commonwealth’s attorney engaged in prosecutorial misconduct. Fourth, that the trial court’s instructions to the jury defining reasonable doubt wer,e improper. We are not persuaded that any such error was committed by the trial court. Accordingly, we affirm.

On February 22, 1978, Poindexter was arrested and charged with attempted murder, arson, risking a catastrophe, recklessly endangering another person, burglary, criminal conspiracy, and criminal mischief. These charges were subsequently dropped after the trial court held that the Commonwealth failed to establish a prima facie case against Poindexter. On August 8, 1978, the Commonwealth obtained a warrant to rearrest Poindexter on the same charges. She was rearrested on September 20, 1978. After a preliminary hearing, the trial court ordered Poindexter held for trial.

The record discloses that on February 21 and 22, 1978, Poindexter attended the trial of Gregory Gainor. Gainor was convicted. When the verdict was announced, Poindexter became hysterical and had to be subdued by sheriff’s deputies. At Gainor’s trial, one of the Commonwealth’s witnesses was Emma Reeves. On the evening of February 22, 1978, when Ms. Reeves returned home she discovered that a fire had been set in her apartment. Witnesses placed Poindexter near Reeves’s apartment building near the time of the fire. An assistant fire marshall testified that the fire was of an incendiary origin.

Poindexter moved that the charges brought against her be dismissed under Pa.R.Crim.P. 141(d). She contends that the trial court improperly denied her motion. Specifically, she asserts she should have been discharged because costs were not paid after the charges brought in the initial arrest were dropped and she was discharged. Rule 141(d) was applied to a case factually very similar to this one in Commonwealth v. Cartagena, 482 Pa. 6, 15-16, 393 A.2d 350, 355 (1978), wherein our Supreme Court said:

Appellant, however, has omitted the two sentences preceding the above-quoted portion, which state:
“If a prima facie case of the defendant’s guilt is not established at the preliminary hearing, and no application for continuance, supported by reasonable grounds, is made by an interested person, and no reason for a continuance otherwise appears, the issuing authority shall discharge the defendant; and if he finds that the prosecution was brought without probable cause, the issuing authority shall order affiant to pay the cost of the prosecution. No further proceedings may be had before any issuing authority on the same cause until the affiant in the original proceeding has repaid the costs.” Pa.R.Crim.P. 141(3). (Emphasis added).
In the instant case, the first prosecution was dismissed because of the failure to establish a prima facie case and not because of the lack of probable cause to institute the criminal proceedings. Appellant’s argument is thus merit-less.

Accordingly, the initial prosecution, herein, was dropped because of the failure of the Commonwealth to establish a prima facie case and not because of a lack of a probable cause. Therefore, Poindexter’s argument is merit-less. See also: Commonwealth v. Cobbs, 288 Pa.Super. 155, 431 A.2d 335 (1981); Commonwealth v. Scott, 279 Pa.Super. 8, 420 A.2d 717 (1980).

Next, Poindexter argues that Pa.R.Crim.P. 1100 was violated because her trial did not commence within 180 days of the filing of the initial complaint. It is clear that trial did commence within 180 days of the filing of the second complaint. In Commonwealth v. Braithwaite, 253 Pa.Super. 447, 450, 385 A.2d 423, 424-425 (1978).

We find the instant situation to be controlled by our decision in Commonwealth v. Mumich, 239 Pa.Super. 209, 361 A.2d 359 (1976). In Mumich, we held that the prescribed period of Rule 1100 commenced with the filing of a subsequent complaint when an initial complaint had been properly dismissed by a magistrate. We tempered our holding in Mumich, however, with the recognition that the prompt trial period would attach from the date of the second complaint only if (1) the first complaint was properly dismissed and (2) the record fails to reflect an improper prosecutorial design to circumvent the mandate of Rule 1100.

We are satisfied that the first complaint posed against Poindexter was properly dismissed and that the prosecution did not seek to circumvent the mandate of Rule 1100. We are unable to conclude that the Rule was violated. Commonwealth v. Genovese, 493 Pa. 65, 425 A.2d 367 (1981).

Poindexter argues also that the prosecuting attorney engaged in prosecutorial misconduct by making the following statement.

This case involves a fire and we all know how serious a fire is. We all know how serious arson is.
In this case, it is particularly offensive because this was not just a regular arson. This came out of one of the most wicked and depraved motions [sic] tht it can come from, against one coming to City Hall and speaking out in a criminal case.
We know that the whole jury trial system is the bedrock of a civilized society. We don’t resolve our disputes in the street. We bring them into the Courtroom, where the people are nicely dressed and there is carpet.
We do that by bringing witnesses to the stand to testify. They take an oath and take the stand and, hopefully, tell the truth.
The reason this was depraved and wicked is because it was against someone who came into Court to tell the truth. If this system is going to survive, they must come into Court freely, ladies and gentlemen, and not worry whether their home was burned down because someone didn’t like the verdict.
I would ask you ... to tell her (the defendant) by your verdict that you could not retaliate against a witness or in a case and you could not go to someone’s apartment and destroy the contents, or set fire to one’s house and show Lisa Poindexter there is justice.

The record indicates that no objection was made to these remarks at trial. Accordingly, the issue has not been properly preserved for appellate review. Commonwealth v. Murphy, 493 Pa. 35, 425 A.2d 352 (1981); Commonwealth v. Jarvis, 482 Pa. 598, 394 A.2d 483 (1978); Commonwealth v. Brown, 467 Pa. 512, 359 A.2d 393 (1976).

Finally, Poindexter asserts that the reasonable doubt charge made by the court to the jury was improper. The court charged the jury in the following manner:

A reasonable doubt is such a doubt as would restrain a reasonable person from acting in a matter of importance to himself.
It is not such a doubt as one might summon for the purpose of escaping the consequences of an unpleasant verdict, but as the term implies, it is a doubt that is reasonable and it is an honest doubt, arising out of the evidence, itself.

Essentially, she contends that the use of the word “restrain” makes the charge improper. We said in Commonwealth v. Moore, 271 Pa.Super. 494, 498, 414 A.2d 362, 364 (1979):

Appellant next contends that his trial counsel was ineffective in failing to object to the lower court’s jury instruction defining reasonable doubt. The trial judge defined reasonable doubt as “that kind of doubt that would cause a reasonable man ... to be restrained from acting”, which is one of two formulations expressly endorsed by the Supreme Court. Commonwealth v. Young, 456 Pa. 102, 317 A.2d 258 (1974).

We are satisfied that the reasonable doubt charge to the jury was proper.

The judgment of sentence of the trial court is affirmed.

SPAETH, J;, files concurring opinion.

SPAETH, Judge,

concurring:

I agree that the judgments of sentence should be affirmed. I think, however, that some further comment on the Rule 1100 question is in order.

On February 23,1978, appellant was charged in a criminal complaint with attempted murder, arson, risking a catastrophe, recklessly endangering another person, burglary, criminal conspiracy, and criminal mischief. On March 8 a preliminary hearing was held, at which the following evidence was introduced against her.

Emma Jean Reeves testified that on February 22,1978, at about 8:00 a. m., she left her apartment in fine condition and went to City Hall to testify as a witness at a trial there. She knew appellant, and appellant was in the court room while she testified. At 8:30 p. m. she returned to find that her apartment had been broken into and set aflame. N.T. 3/8/78 at b-6.

Raymond Hopkins testified that he lived in the first floor apartment below Emma Reeves. At about 7:00 p. m. on February 22, 1978, he heard a noise at the front door of the house, which sounded like someone breaking in. He then heard “a few foot tracks like a terrible noise upstairs,” id. 18, and saw a man and a woman run out the front door. He was only able to see them from behind. He was blind in one eye and had impaired vision in the other. From the color of her hair he nonetheless thought that the woman was appellant. Id. 22-23. After seeing the couple flee, Hopkins returned to his room and watched television. At approximately 7:30 p. m. he heard someone yell, “Fire upstairs,” and he left the house. Id. at 24. He saw smoke coming from the second floor where Emma Reeves lived. Hopkins estimated that ten or fifteen minutes elapsed between the time he saw the couple leave the house and the time he saw smoke coming from the second floor. Id. at 25.

Catherine Goode, who lived two doors away, testified that shortly after seeing a man break into the house where Emma Reeves and Raymond Hopkins had their apartments, she saw appellant and a man in front of her house.

Lieutenant Lawrence Dove of the Philadelphia Fire Department testified that the Reeves apartment had been broken into by force, and that the fire started in her apartment and was of incendiary origin.

The court concluded that this evidence failed to make out a prima facie case against appellant. Although the issue is perhaps close, I think this conclusion was correct. Cf. Majority op. at 1389 n. 1.

On August 8, 1978, a second criminal complaint was filed against appellant. She was arrested on September 20, and on October 6 a second preliminary hearing was held. Raymond Hopkins, Catherine Goode, and Lieutenant Dove again testified. Their testimony was substantially the same as their testimony at the first hearing. The only additional evidence provided at the second hearing was testimony by Judith Frankel Rubino. This testimony demonstrated that appellant had a motive to commit the crimes alleged. Rubino, a Philadelphia assistant district attorney, testified that on February 21 and 22, 1978, she had prosecuted Gregory Gainor for murder. Emma Jean Reeves was a witness for the Commonwealth. Rubino testified that appellant was in the courtroom, and that when the verdict of guilty was returned, she became hysterical, “yelling and screaming,” and had to be physically restrained. N.T. 10/6/78 at 43.

At the conclusion of this evidence the court found a prima facie case against appellant for arson, burglary, conspiracy, and criminal mischief. Id. at 53-54.

If the day for computing the Rule 1100 period commenced on the date the first complaint was filed, trial should have commenced on August 22, 1978. If, however, the period commenced on the date the second complaint was filed, trial had only to commence on February 5, 1979. In fact appellant was brought to trial on January 22, 1979.

Appellant argues that “the Commonwealth delayed making out a prima facie case until weeks after the 180 day period dating from the first complaint .... Since there was no apparent reason for the delay except to avoid [Rule 1100], the 180 day period runs from the first complaint.” Brief for Appellant at 7. I agree that the Commonwealth’s delay in filing the second complaint when the additional evidence needed to make out a prima facie case—the testimony of the assistant district attorney—was within its control does show a disregard of appellant’s right to a speedy trial. I do not, however, believe that it shows that the Commonwealth at the first preliminary hearing acted in bad faith or tried to circumvent the mandate of Rule 1100. Indeed the evidence is to the contrary. The Commonwealth on direct examination sought to elicit from Emma Jean Reeves the same evidence it was ultimately able to obtain from Rubino. N.T. 3/8/78 at 8. The prosecutor asked Reeves what appellant’s reaction was to the jury’s verdict in the Gainor murder trial. Reeves testified, however, that she was not in the court room at that time and therefore did not know. Further evidence of the Commonwealth’s good faith is that the first preliminary hearing promptly followed the filing of the first complaint. I find no basis for inferring that as a device to circumvent Rule 1100 the Commonwealth sought at the first preliminary hearing to have its complaint dismissed for insufficient evidence.

As regards its delay in filing the second complaint, the Commonwealth asserts that “once the [first] complaint is properly dismissed as here, it is irrelevant when the rearrest occurs.” Brief for Commonwealth 8-9 (footnote omitted). I am by no means sure that this is true. Whether the Commonwealth has a duty to act with due diligence in prosecuting a case that has been dismissed at a preliminary hearing because of the failure to present sufficient evidence is a novel issue. While the Commonwealth has discretion in deciding whether to prosecute some one in the first instance, once it has decided to, as shown by its filing a complaint, it should, it seems to me, proceed promptly. Failing to proceed promptly when the Commonwealth has within its control the additional evidence needed to make out a prima facie case is contrary at least to the spirit, if not the letter, of Rule 1100. See generally Commonwealth v. Hamilton, 449 Pa. 297, 297 A.2d 127 (1972); Commonwealth v. Mitchell, 472 Pa. 553, 372 A.2d 826 (1977); Commonwealth v. Collins, 266 Pa.Superior Ct. 340, 404 A.2d 1320 (1979).

I do not understand the majority opinion to decide this issue. Nor do I decide it. Appellant’s argument focuses on the Commonwealth’s conduct at the first preliminary hearing. The issue of the effect, if any, of the Commonwealth’s ensuing delay is therefore not before us.

      . Poindexter argues that the prosecution sought to circumvent Rule 1100 because a key witness not called at the preliminary hearing following the first arrest but called at the preliminary hearing following the second arrest supplied evidence crucial to the establishment of a prima facie case. That witness was an assistant district attorney who, she claims, clearly could have been called to testify at the first hearing. She asserts that this fact coupled with the five month delay before the second complaint was filed demonstrates the Commonwealth’s improper design to circumvent Rule 1100. We are satisfied that the testimony of the assistant district attorney was not required to establish the prima facie case against Poindexter. Therefore, we find that the Commonwealth did not exhibit an effort to circumvent Rule 1100. Furthermore, we do not hold that the delays before the second complaint was filed and arrest occurred establish that the Commonwealth sought to circumvent Rule 1100.
      Poindexter also claims that she was prejudiced by the delay because an alibi witness could not be found after her rearrest. Our review of the record indicates that there was no testimony submitted which demonstrated what that witness would have said. Accordingly, we are unable to determine how Poindexter was prejudiced. We are convinced that a reversal of the trial court’s decision is not required by these circumstances.


author: SPAETH, Judge:

text:
    448 A.2d 1
    Mary Catherine OSWALD, Appellant, v. Arthur STEWART and Arlene Stewart v. Raymond C. FLORENCE t/d/b/a Florence Real Estate.
    Superior Court of Pennsylvania.
    Argued Nov. 13, 1980.
    Filed May 14, 1982.
    Reargument Denied Aug. 6, 1982.

      Arnold M. Friedman, Pittsburgh, for appellant.
    Warren D. Ferry, Pittsburgh, for appellees.
    Before SPAETH, WICKERSHAM and LIPEZ, JJ.
   SPAETH, Judge:

This is an appeal from an order denying a motion for new trial. Appellant seeks to recover for personal injuries incurred in a fall through a basement door on property owned by appellee. She argues, among other matters, that the lower court erred in charging the jury on the “choice of paths” doctrine. We agree, and therefore reverse and remand for new trial.

Appellant is a real estate agent, and appellee’s property was the first she had ever listed for sale. On January 7, 1974, appellant visited appellee’s property for the second time. Another real estate agent, Richard Fassinger, who was her senior and had been to the property several times before, was with her. Since they could not enter the property through the front door, appellant and Mr. Fassinger walked around the side of the house to the back porch. There they were confronted by two gates, side-by-side, which barred their access to the back porch and the back door.

The gate to the left was an accordian gate, about twenty inches high, which was opened and closed by means of a mechanical latch. The gate to the right was a chicken wire gate, about three feet high, which was fastened in two places by wiring. Mr. Fassinger opened the accordian gate and proceeded through it, stepping over a wooden basement door that was flush with the cement floor of the back porch area. Appellant followed him through the gate, but stepped on the basement door. The basement door gave way, and appellant tumbled through it for about six feet into the basement below.

The lower court charged the jury, in pertinent part, as follows:

Now in this case one of the points that counsel has stressed and you have listened to this argument concerns what we call the alternate safe course rule. I am reading now to you from Feldman’s book, Pennsylvania Trial Guide, and in section 30.19 he lucidly states, “Where a person has a choice of two ways, one of which is perfectly safe and the other of which is subject to risks and dangers, and the person voluntarily chooses the course of risks and dangers, he is guilty of contributory negligence and may not recover.” However, there is no law which requires anybody to follow a particular course, and even if an alternative course could be determined to be hypothetically safer that the one still—but the one chosen is still free of hazard, he is not contributorily negligent merely because he could have taken an alternative route. Basically he concludes the question is whether the path chosen was an obviously dangerous one and whether a reasonably prudent person would not have followed the path chosen by the plaintiff. So that if you find that the one path leading from the alleyway between the two houses to the back yard, shall we say, or to the area near that stairway which connected the upper porch with the level of the land in the back yard, if you find that the one course of travel involved an obvious hazard, that is, through what has been referred to here as the accordian gate connecting the rear of the house with the post supporting the porch in the rear, if you find that that was hazardous and that the other way was alternatively available, and that has been called the chicken wire gate, fence, if you find that that was a known danger and that an alternative course should have been taken, you could determine that the plaintiff was contributorily negligent. However, if you find that was not an obvious danger, the door we are talking about, and was not a known hazard, then, of course, the rule wouldn’t apply.
N.T. 408a-410a.

Appellant argues that this charge was error because “no evidence was presented in this case that the door constituted an obvious danger which the appellant was aware of or should have been made aware of.” Appellant’s Brief at 10. We agree.

At the outset, it is important to point out that the choice of ways—or choice of paths—doctrine has a narrow scope of application. Many cases refuse to apply the doctrine, and suggest that it is to be applied in only the clearest case. See, e.g., Tonik v. Apex Garages, Inc., 442 Pa. 373, 275 A.2d 296 (1971); Quinn v. Kumar, 437 Pa. 268, 263 A.2d 458 (1970); Hopton v. Donora Borough, 415 Pa. 173, 202 A.2d 814 (1964); Cooper v. Heintz Manufacturing Co., 385 Pa. 296, 122 A.2d 699 (1956); Downing v. Shaffer, 246 Pa.Superior Ct. 512, 371 A.2d 953 (1977); Eller v. Work, 233 Pa.Superior Ct. 186, 336 A.2d 645 (1975) (suggesting doctrine not applicable without reaching question); Miller v. Miller, 224 Pa.Superior Ct. 569, 308 A.2d 115 (1973); Garvin v. Pittsburgh, 161 Pa.Superior Ct. 140, 53 A.2d 906 (1947); Graham v. Reynoldsville Borough, 132 Pa.Superior Ct. 296, 200 A. 681 (1938). Indeed, we have been able to find only two modern cases applying the choice of paths doctrine, and they demonstrate how obvious must be the risk of the path chosen. In DeFonde v. Keystone Valley Coal Co., 386 Pa. 433, 126 A.2d 439 (1956), the decedent could have walked around the front end of a bulldozer to reach his truck but instead, he “darted forward between the rear of the [mechanical] shovel and the bulldozer and was there caught and crushed between the two vehicles due to the recoil of the shovel over the three or four foot gap which separated it from the bulldozer.” Id., 386 Pa. 436, 126 A.2d at 440. The Supreme Court held that the decedent’s choice to “duck”, id., between the two machines rather than walk around them was an “obviously dangerous one.” Id., 386 Pa. 434, 126 A.2d at 440. Similarly, in Tharp v. Pennsylvania Railroad Co., 332 Pa. 233, 2 A.2d 695 (1938), the decedent did not use a bridge over the railroad tracks but chose to cross over a set of four railroad tracks, and was struck by an oncoming train in the second track.

In contrast to both DeFonde and Tharp, the danger of the path appellant chose—through the accordian gate and over the cellar door rather than through the chicken wire gate— was not at all obvious. Appellant testified that the cellar door “seemed to be okay to walk on.” N.T. 36a. Mr. Fassinger, the realtor who accompanied appellant in her visit to the house, and who proceeded through the accordian gate before appellant, testified that the door “did not look dangerous,” and that he knew it was dangerous, and therefore stepped over it, only because he had examined the door on earlier visits to the house:

Q. Describe how the door appeared as it was before you stepped across.
A. Well, the door did not look dangerous.
Q. Tell us what you mean about how it looked first.
A. There was a tongue-grooved very old door, say it would be close to forty years old.
Q. Did it look or did it not look dangerous?
A. To someone walking across the first time, it would not appear dangerous.
MR. FERRY:
Object to that since he has been there before!
THE COURT: Sustained.
Q. Describe without using the word whether it is dangerous or not, describe the appearance of the door as closed when you walked over it as best you can. What type of door was it?
A. It was a trap door similar to the one in that photostat.
Q. Was it flush?
A. Yes. It was part of the walking area.
Q. Was it solid or did it appear broken?
A. Well, there was some rotted areas along the frame at the hinge area.
Q. Did it appear solid, the door?
A. At that time, no. The first time I walked across it, yes.
Q. When had you walked across it?
A. On my first showing of the property.
Q. How long before was that?
A. Two months.
Q. You had walked over it two months before?
A. Yes.
Q. Did you know yourself whether this door was dangerous?
A. Yes, I did.
MR. FERRY: Objection.
THE COURT: Sustained again.
Q. Did you ever open this door on previous occasions?
A. Yes.
Q. Did you learn anything about the condition of the door from your previous visits?
A. From opening it, I found that the hinge gave way at the frame.
Q. When had you opened it?
A. On my first showing of the property approximately two months before the accident.
Q. Explain what you mean the hinge gave way when you opened it.
A. Well, when you pick up a door, you are picking it up from the bottom and the bottom hinge was completely—or I shouldn’t say completely—but the bottom hinge was rotten out so that when you—and you are trying to pick it up to turn it. You either pick it up—the door was like not attached. It was a very heavy door.
Q. Did you tell Mary anything about this door at any time before she stepped on it?
A. No.
Q. When you stepped across the door, did you tell her before she stepped across it, did you tell her anything about what it was like when you opened the door?
A. No.

In addition, the owner of the property and one of the appellees in this case, Mr. Steward, testified that the door was “in good condition” at the time of the accident and that he did not know of anything about the door that would indicate that it was unsafe to walk upon. N.T. 308a-309a. Mrs. McAdoo, a broker for appellee real estate agency, testified only that the door looked “weather-beaten”—not that it looked unsafe. N.T. 243a.

Moreover, the fact that Mr. Fassinger walked ahead of appellant, through the gate and over the door, without injury, cuts against an argument that the route that both took was dangerous. Appellant testified that she did not see Fassinger step over the door, because “he was directly in front of me.” N.T. 96a. So far as appellant knew, the route over the door was a safe one, as Fassinger had taken it without incident. See Quinn v. Kumar, supra (plaintiff did not appreciate danger to path taken where he had taken same route without mishap immediately before accident).

We are therefore satisfied that the jury should not have been charged on the choice of paths doctrine. There is, however, another aspect of this case, which appears to have been overlooked by the lower court. The lower court, in its charge to the jury, stated that it was reading from Feldman, Pennsylvania Trial Guide § 30.19. N.T. 408a. However, a review of the charge reveals that the court failed to consider the second paragraph of Feldman’s discussion. This failure is significant, for when the second paragraph is considered, it is evident that the choice of paths doctrine does not apply here.

The entire § 30.19 reads as follows:

It has been stated as a general proposition that where a person has a choice of two ways, one of which is perfectly safe and the other of which is subject to risks and dangers, and the person voluntarily chooses the latter and is injured, he is guilty of contributory negligence and cannot recover. However, there is no law which requires anybody to follow any particular course in reaching his destination, and even if an alternative course could be determined to be hypothetically safer, but the one chosen is still free of hazard, a person is not contributorily negligent merely because he could have escaped injury by taking the alternate route. And the “choice of paths” rule applies only if two distinct ways exist, one of which is clearly recognizable as safe and the other as involving danger, and if the plaintiff has freedom to choose between them. Basically the question is whether the path chosen was an obviously dangerous one, and whether a reasonably prudent person would not have followed the path chosen by the plaintiff.
In determining whether a person is contributorily negligent for having chosen a particular route, it is of significance whether there was some compelling reason for choosing that route. Thus, if the plaintiff is in the course of his employment and is acting under instructions from his superior and the route chosen is more convenient and expeditious, these factors weigh against his choice being considered contributory negligence. And where a workman in the discharge of his duties proceeds from a place where it is necessary for him to be, to another place where it is necessary for him to go, the law will not proclaim him guilty of contributory negligence if he moves over a route unknown to him, in the exercise of his normal faculties, to be dangerous. And where the route not chosen has dangers which the plaintiff was seeking to avoid, this weighs against contributory negligence.
Feldman, Pennsylvania Trial Guide § 30.19 (1978) (footnotes omitted).

The second paragraph of this statement makes plain that the reason appellant chose the route over the door is important to the decision whether the choice of paths doctrine applies. This is so because, as we have said:

The rule requiring a person to select a safe route in favor of a dangerous route is nothing more than a formulation of the general rule that a person is contributorily negligent if his conduct falls short of the standard to which a reasonable person should conform in order to protect himself from harm.
Downing v. Shaffer, 246 Pa.Superior Ct. 512, 518, 371 A.2d 953, 956 (1977).

The record shows that appellant’s reason for choosing the route over the door was entirely sensible, and did not fall short of the standard to which a reasonable person should conform. Mr. Fassinger testified that the accordian gate was easier to unhook and pass through than the chicken-wire gate:

Q. Indicating an alley on the side. This is the area?
A. Right. We had a choice to go across the accordion [sic] door with the latch on it between the post and the building, or to go through the chicken wire fence which was much more detailed as to opening it.
Q. Explain what you mean by this chicken wire fence.
A. It was a mesh type fence and it had some wires connected. It locked onto the post. It was about waist high. And to unsecure that fence would have been much more trouble than to go through the accordion [sic] gate with the latch on it.
Q. How would it have been more trouble? How do you recollect it was connected?
A. Well, there was not one. wire hooking it onto the post. There were multiple wires hooking it onto the post.
Q. Did you go through the accordion [sic] gate?
A. Yes.
Q. How was that latched?
A. With a—like a squeeze type latch that you see on a children’s gate.
Q. Did that appear to be something to open?
A. That was simple to open.
Q. Did you go through first, or did Mary?
A. I went through first.
N.T. 116a-117a.

On cross-examination, Mr. Fassinger testified:

Q. You didn’t make any attempt to actually open it. You just looked at it and you decided to go through the accordion [sic ] gate instead of going through that one, is that right?
A. My decision was going through the accordion [sic] gate would be easier than to undo the mess that was called a chicken wire gate.
Q. Isn’t it correct you actually told Miss Oswald to go through the accordion [sic] gate was easier?
A. Yes.
N.T. 147a.

This testimony was corroborated by the testimony of Mr. Sorice, who installed both the accordian gate and the chicken wire fence, and who described how they were fastened, N.T. 268a, 271a, and by appellant, who testified that the accordian gate was “a children’s gate that you would use to keep them out of the kitchen,” N.T. 33a, and that “there was no obstruction” to opening the gate, N.T. 106a.

It is therefore clear that appellant was in the very situation described in the second paragraph of § 30.19: she was acting in the course of her employment; she was following the instructions of her superior, Mr. Fassinger; and the route chosen was more convenient and expeditious. The choice of paths doctrine was not applicable in her situation, Quinn v. Kumar, supra, and it was error to charge the jury on the doctrine, Downing v. Shaffer, supra.

The judgment is reversed and the case remanded for a new trial.


text:
    448 A.2d 5
    Edward C. McALLONIS, D.M.D. v. Nancy S. PRYOR, Appellant.
    Superior Court of Pennsylvania.
    Argued April 12, 1982.
    Filed June 18, 1982.
    Reargument Denied Aug. 6, 1982.
    Nancy S. Pryor, appellant, in pro. per.

      John King Heisey, Pittsburgh, for appellee.
    Before HESTER, JOHNSON and POPOVICH, JJ.
   PER CURIAM:

Appellant appeals from the Order dated March 6, 1981, quashing nunc pro tunc Appellant’s Writ of Execution for costs, issued upon a judgment of non pros.

The record indicates that Appellee brought an assumpsit action before a magistrate against Appellant, his patient, for dental work allegedly performed. Appellant filed a separate claim, before the same magistrate, for personal injuries in the amount of $2,000. The claims were both decided in favor of Appellee. Appellant appealed each judgment separately; the instant appeal concerns the assumpsit action originally brought by Appellee. Appellee was ruled to file a complaint in the instant case, and after failing to do so, Appellant praeciped for a judgment of non pros which was entered January 7, 1981. Thereafter, Appellant obtained a Writ of Execution against Appellee for docketed costs which was filed with the sheriff. Appellee paid the costs under protest and filed a Motion to Quash Writ of Execution Nunc Pro Tunc, on the basis that the judgment of non pros could not support a writ of execution. Appellee’s Motion was granted on March 6, 1981.

Appellant alleges that she was denied due process of law when the lower court entered its Order quashing her Writ of Execution after an ex parte proceeding of which Appellant had no notice until after the said Order was entered. The documents in support of her argument appear only as exhibits to her brief and not as part of the record. Nor does the record contain any other evidence of her assertions. After the appeal was taken to this court, Appellee filed a Motion to Quash this appeal based on Appellant’s purported failure to properly preserve her issue on appeal in the court below. Judge MONTGOMERY denied Appellee’s motion by Order dated September 30, 1981, without prejudice to Appellee’s briefing and arguing the question at the time set for argument on the merits. It is black letter law that an appellate court cannot consider anything which is not part of the record in the case. McCaffrey v. Pittsburgh Athletic Association, 448 Pa. 151, 293 A.2d 51 (1972). This includes information located only in a party’s brief. See Dile v. Dile, 284 Pa.Super. 459, 426 A.2d 137 (1981).

Therefore, since there exists no evidence in the record to support Appellant’s allegations, the appeal is dismissed.


author: SPAETH, Judge: BECK, Judge,

text:
    448 A.2d 6
    Samuel DUNLAP, v. PHILADELPHIA NEWSPAPERS, INC., Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 6, 1981.
    Filed July 2, 1982.
    Petition for Allowance of Appeal Denied Sept. 30, 1982.

      Samuel E. Klein, Philadelphia, for appellant.
    Milton A. Lazaroff, Philadelphia, for appellee.
    Before SPAETH, BECK and LIPEZ, JJ.
   SPAETH, Judge:

This action for defamation was brought by appellee, a sergeant in the Philadelphia Police Department, against appellant, publisher of The Philadelphia Inquirer. It is based on an article in the Inquirer concerning police corruption. The jury awarded appellee both compensatory and punitive damages. Appellant’s motion for judgment n. o. v. or new trial was denied. We have concluded that judgment n. o. v. should have been entered because appellee failed to prove that appellant published the article with “actual malice” or “reckless disregard of the truth,” as required by New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). We therefore reverse.

In reviewing the denial of a motion for judgment n. o. v., we must view the evidence in the light most favorable to the verdict-winner. Only evidence supporting the verdict may be considered, with the rest being rejected. All conflicts in the evidence are to be resolved in favor of the verdict-winner, or appellee. Kiely v. Southeastern Pennsylvania Transportation Authority, 264 Pa.Superior Ct. 578, 401 A.2d 366 (1979); Grubb v. Albert Einstein Medical Center, 255 Pa.Superior Ct. 381, 387 A.2d 480 (1978). Thus viewed, the evidence was as follows:

The article at issue is introduced by a headline that runs the entire width of the Inquirer’s front page and states, in one large banner, “Wide Police Corruption Revealed.” Reproduced Record at 563a. Immediately beneath the headline are two smaller headlines, side-by-side, the one on the left stating, “Patrol Outside, Gambling Inside,” the one on the right, “Hidden Cameras Confirm Reports of Payoff System.” Two large photographs are beneath the “Patrol Outside, Gambling Inside” headline. The larger photograph, about seven inches square, shows a man placing his hand inside a police car marked “17B.” The caption to this photograph reads, “Sergeant’s Car 17B Stops Outside Known Gambling Location.” The article itself, entitled “We Watched Gambling Spot Until Policemen Nabbed Us”, begins immediately beneath the photograph of car 17B. It describes the “stake-out” conducted by two Inquirer reporters and elaborates on the meaning of the photograph as follows:

We arrived at the location at about 4 P.M. and found the streets empty except for several late model luxury cars parked in the area and one man with grey sideburns and a white shirt pacing the block in front of the row-house.
Later, other men talked with the older man and then entered the rowhouse.
At 5:47 P.M., car 17B drove up Wharton st. and turned left onto 36th st., directly below us. The man, who appeared to be in his late 50s or early 60s, walked out into the street, leaned on the driver’s side, and reached into the squad car through an open window.
At 5:51 P.M. the car left.
CALLS STATION
We called the 17th District police station and asked who was driving car 17B that day and was told it was occupied by Sgt. Samuel Dunlap.
On Monday I and another reporter went to the 17th District headquarters to show Sgt. Dunlap the photos and to question him about his activities on the afternoon of Sept. 12.
Dunlap, a tall, thin-faced officer with a ruddy complexion, greeted the reporters and sat with them in an interrogation room.
Asked if he was driving car 17B that day, he said, “more than likely.”
Asked if he could identify the man leaning into his squad car, Dunlap laughed and said, “Oh sure—that’s Hubba Hubba.
‘TOWN DRUNK’
“He’s the local town drunk. He’s always acting like he’s directing traffic. I heard he just died. Wait, I can get you his real name. We call him Hubba Hubba—he’s been picked up a million times for intoxication.”
Dunlap then identified the man as Vincent Wileczyk, 56, of 3618 Wharton st.
Before Dunlap could be asked any more questions, he took the photographs and showed them to the acting district commander, William Scott.
Scott then motioned myself and the other reporter to his room and said, “I would appreciate if you want to talk to my policemen that you see me first.
“First of all, let’s see some identification.”
After showing Scott press cards, one reporter asked if Sgt. Dunlap could stay while the photographs were discussed. Scott refused and told Dunlap, “Go back out on the street.”
Told that we had talked to Dunlap calmly for several minutes, Scott said, “Well, I’m sorry he did that. I wouldn’t have given you any information at all regarding my personnel.”
Scott refused to give any further information, but persistently asked us, “What is your purpose?”
When I said The Inquirer was investigating gambling at the Wharton street address, Scott said he had no reports of gambling at that location.
When told also that the Inquirer was investigating reports of police payoffs in the area, the captain put his arms forward touching the desk, leaned back in his chair and stood up.
“I haven’t had any reports of payoffs—Do you want to make a complaint?” Scott asked.
“No,” a reporter said. “I want to talk to Dunlap or ask you about Dunlap.”
Scott responded, “I’m flatly telling you I will not allow you to ask my policemen any questions.”

The evidence of “actual malice,” which was essentially uncontroverted, was as follows:

The reporter who wrote the article, Kent Pollack, testified that he had called the police station after the surveillance had taken place to find out who had been in car 17B at the time and was told by whoever answered the telephone that it was appellee. N.T. 6/7/79, 255, N.T. 6/8/79, 331-332. Although Mr. Pollack did obtain this information by pretending to be someone who “wanted to write a letter to the police commissioner to commend” appellee, N.T. 6/7/79, 255, he testified that this ruse had been used during the newspaper’s series on police corruption for three months, id 254.

Mr. Pollack also testified that after his telephone call to the police station, he met with Police Commissioner O’Neill to verify the identity of the officer in car 17B. N.T. 6/7/79, 331-332. However, the Commissioner refused to talk to him or to give him any information. Id This was corroborated by Acel Moore, who accompanied Mr. Pollack on this interview. N.T. 6/8/79, 308-9.

Ray Holton served as “legman” and his job was to verify the information in the article to be written by Mr. Pollack. N.T. 6/7/79, 284. He testified that he was not satisfied with the telephone identification of the officer in car 17B, and decided to interview appellee. N.T. 6/7/79, 266. He was accompanied on this interview by Mr. Moore, whose job it was to act as “back-up” and to take notes of what was said to insure accuracy in reporting. N.T. 6/7/79, 267 (testimony of Holton). Mr. Moore testified that this was a policy of appellant’s and that he had performed this role on other occasions. N.T. 6/8/79, 303. Both Mr. Holton and Mr. Moore testified that they showed the photograph, which later appeared in the newspaper, to appellee and asked him if he was in the car at the time the photograph was taken. N.T. 6/7/79, 272, 281 (Holton), N.T. 6/8/79, 305 (Moore). Both testified that appellee answered, “More than likely.” Id Both testified that appellee was asked to double-check this information from police logs, but that when he left to do so, the interview was interrupted by Captain Scott, N.T. 6/7/79, 274, 281, 284-85 (Holton), N.T. 6/7/79, 313 (Moore), who was upset and ordered appellee to leave the room, so that the interview was ended. N.T. 6/7/79, 278-9, 281 (Holton), N.T. 6/8/79, 313 (Moore).

-I-

The first issue we must decide, as the threshold issue in an action for defamation, is whether the article published in the Inquirer could be understood as defamatory. It was the function of the lower court, in the first instance, to make this decision. If the court decided that the article could be understood as defamatory, then it became the jury’s function to decide whether it was so understood by those who read it. Corabi v. The Curtis Publishing Co., 441 Pa. 432, 273 A.2d 899 (1971); Brophy v. Philadelphia Newspapers Inc., 281 Pa.Superior Ct. 588, 422 A.2d 625 (1980).

A publication is defamatory if it “tends to blacken a person’s reputation or expose him to public hatred, contempt or ridicule or injury him in his business or profession.” Cosgrove Studio and Camera Shop, Inc. v. Pane, 408 Pa. 314, 317, 182 A.2d 751, 753 (1962). In our view, it is beyond question that the article published in the Inquirer could be understood as defamatory. As we have described above, the article ran beneath a large photograph of a sergeant’s squad car, which in turn appeared beneath a banner headline reading “Wide Police Corruption Revealed.” If appellee were the sergeant in the car, and the article says this was “more likely than not,” then the meaning conveyed by the article was that the photograph depicted appellee accepting a bribe, which would at the very least tend to injure appellee in his profession. See Brophy v. Philadelphia Newspapers Inc., supra (article suggesting that police commissioner and police officers shot and killed son of police chief as part of vendetta. Compare Martin v. Municipal Publications, 510 F.Supp. 255 (E.D.Pa.1988) (photograph, article and caption capable of defamatory meaning under Pennsylvania law), with Fogel v. Forbes, 500 F.Supp. 1081 (E.D.Pa.1980) (photograph and caption not defamatory under Pennsylvania law).

As to whether the article was understood as defamatory by those who read it, appellee argues that “[t]he evidence produced at trial was more than sufficient for the jury to conclude that the average person who read the article construed it to mean that Sergeant Dunlap was in Car 17-B and was receiving a bribe or payoff.” Appellee’s Brief at 16. We agree, although, to be precise, appellee should have said, “the reasonable person who read the article,” instead of “the average person.”

-II-

Appellant argues that it may not be held liable because “the article reported only the undisputed and true facts.” Appellant’s Brief at 13. However, appellant does not discuss who had the burden of proving the truth or falsity of the article, and we think it important to resolve this issue before we discuss whether the article did report only undisputed and true facts.

-A-

The issue whether in a defamation action the plaintiff has the burden of proving the falsity of the publication or the defendant the burden of proving its truth has recently been before the United States Supreme Court, but it was not decided. Wilson v. Scripps-Howard Broadcasting Co., 642 F.2d 371 (6th Cir.) cert. granted, 454 U.S. 962, 102 S.Ct. 500, 70 L.Ed.2d 377 (1981), cert. dismissed pursuant to Rule 53, 454 U.S. 1130, 102 S.Ct. 984, 71 L.Ed.2d 119 (1982). The practice in Pennsylvania has been to place the burden of proving truth on the defendant, but the continued validity of this practice has been questioned. Steaks Unlimited, Inc. v. Deaner, 623 F.2d 264, 274-5 n. 49 (3rd Cir. 1980).

The common law rule has been that the defendant has the burden of proving truth as an affirmative defense. Professor Prosser explains the rule by saying that “[o]ut of a tender regard for reputations, the law presumes in the first instance that all defamation is false, and the defendant has the burden of pleading and proving truth.” Prosser, Law of Torts § 116 (1971) (footnotes omitted). Our Supreme Court has consistently followed this rule:

Nevertheless, although ordinarily in order to be actionable words must be false, falsity is not an element of a cause of action for libel in Pennsylvania. Rather, the opposite of falsity, truth, is a complete and absolute defense to a civil action for libel . . . And the burden of proving the same rests upon the defendant.
Corabi v. Curtis Publishing Co., 441 Pa. 432, 450, 273 A.2d 899, 908 (1971) (footnotes omitted).

Accord, Schonek v. WJAC, Inc., 436 Pa. 78, 258 A.2d 504 (1969); Badami v. Dimson, 226 Pa. Superior Ct. 75, 310 A.2d 298 (1973). See Lowenschuss v. West Publishing Co., 542 F.2d 180 (3d Cir. 1976) (Pennsylvania law); Keddie v. Pennsylvania State University, 412 F.Supp. 1264 (M.D.Pa.1976) (ibid.); Fram v. Yellow Cab Co. of Pittsburgh, 380 F.Supp. 1314 (W.D.Pa.1974) (ibid. ).

However, as noted by the Third Circuit, the constitutionality of placing the burden of proving truth on the defendant has been called into question by the decision of the United States Supreme Court in Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974). In Gertz, the Court said, “We hold that, so long as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual.” Id. at 347, 94 S.Ct. at 3010 (footnote omitted). Because the reason for placing the burden of proving truth on the defendant is that falsity is presumed, it has been urged that the common law rule does precisely what Gertz forbids: it holds a defendant strictly liable in a case where truth cannot be proved. See Sack, Libel, Slander, and Related Problems, 135 (1980) (citing Corabi v. Curtis Publishing Co., supra, as the only case placing burden on defendant).

Given this state of the law, we have a choice. We might follow Corabi v. Curtis Publishing Co., supra, and hold that appellant as defendant had the burden of proving truth. But we do not think we should do that.

In Moyer v. Phillips, 462 Pa. 395, 396, 341 A.2d 441 (1975), the Court considered whether a statute providing that all causes of action, except for libel and slander, would survive the death of any of the parties was a denial of equal protection. Finding the distinction between causes of action for libel and slander and other causes of action arbitrary, the Court held the statute unconstitutional. In a concurring opinion, Justice ROBERTS, joined by Justice NIX, said:

At common law, the defendant in a defamation action might be faced with a substantial burden of proof.
“In an action for defamation, the plaintiff’s prima facie case is made out when he has established a publication to a third person for which the defendant is responsible, the recipient’s understanding of the defamatory meaning, and its actionable character. It is then open to the defendant to set up various defenses, which to some extent have moderated the rigors of the law of libel and slander. Two of these—privilege and truth—• are complete defenses, avoiding all liability when they are established.”
W. Prosser, Law of Torts § 114, at 776 (1971) (footnote omitted); see id. § 116, at 798. To establish a qualified privilege, the defendant would be required to show his own good faith or lack of “malice.” Id. § 115, at 794-95.
Under this scheme, the focus of litigation in a defamation suit was normally on the issues where the burden of proof rested with the defendant: truth and privilege. Especially as to the latter, where proof of the defendant’s state of mind would frequently be crucial, the testimony of the defendant would be peculiarly necessary. This unique combination of a heavy burden of proof on the defendant with a peculiar need for the testimony of the defendant would render it much more difficult for a decedent’s estate to defend a defamation action than to defend most other actions. Consequently, the General Assembly, when balancing the equities of allowing or not allowing survival, could reasonably determine that the unusually heavy burden of defending a defamation action against a deceased defendant justified singling out that cause of action to abate with the death of the defendant. Since the classification thus bore a “fair and substantial relationship” to a proper legislative objective, I conclude that it did not deny equal protection to plaintiffs in defamation actions so long as the special circumstances justifying the classification continued.
However, a substantial change in the law of defamation was wrought by the decision of the United States Supreme Court in Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974). That case held that, as a matter of constitutional law, liability for defamation may not be imposed without some showing of fault, amounting at least to negligence, on the part of the defendant. Id. at 345, 94 S.Ct. at 3010; see Restatement (Second) of Torts §§ 580A, 580B (Tent. Draft No. 21, 1975). This change drastically shifts the burden of proof in defamation actions and thereby reduces the unusually heavy burden heretofore placed on defendants in such actions. In proving the necessary element of fault to make out his cause of action, the plaintiff will necessarily have to prove facts that would ordinarily negate the existence of a conditional privilege. Id. Topic 3, Special note, at 46-47. Similarly, as a practical matter, the plaintiff will find it necessary to prove the falsity of the statement in order to establish the necessary element of fault; to this extent, the defendant is relieved of the burden of proving truth as a defense. Id. § 582, comment b., & § 580B, comment i.
In my judgment, this radical reallocation of the burden of proof in defamation actions has sufficiently removed the special burdens of defending such an action brought against a deceased defendant as to negate the prior justification for the challenged provision of section 3371. Id., 462 Pa. at 405-408, 341 A.2d at 446 (footnotes omitted).

In our opinion Moyer undermines Corabi and its progeny, in both the Pennsylvania and federal courts. Moreover, we are persuaded that the plaintiff should have the burden of proving falsity for the reasons so carefully explained by Judge MERRITT, writing for the Sixth Circuit in Wilson v. Scripps-Howard Broadcasting Co., supra :

The same rule requiring the plaintiff to prove falsity is required under the First Amendment in libel cases based on negligence or some other standard of fault of lesser magnitude than malice. The Supreme Court in stating that “demonstration that an article was true would seem

to preclude finding the publisher at fault,” Time, Inc. v. Firestone, 424 U.S. 448, 458, 96 S.Ct. 958, 967, 47 L.Ed.2d 154 (1976), has suggested that falsity is an element of fault in defamation cases. In defamation actions brought by private persons against media defendants, Tennessee has defined a standard of fault based on negligence:

[T]he appropriate question to be determined from a preponderance of the evidence is whether the defendant exercised reasonable care and caution in checking on the truth or falsity and the defamatory character of the communication before publishing it.

Memphis Pub. Co. v. Nichols, 569 S.W.2d [412] at 418 [Tenn.]. It would ordinarily be impossible to determine whether the defendant exercised reasonable care and caution in checking on the truth or falsity of a statement without first determining whether the statement was false. The publisher’s carelessness must have caused an error in accuracy, an error in failing to ascertain that the defamatory statement was false. The two elements of carelessness and falsity are inevitably linked, for a defendant should not be liable if it “took every reasonable precaution to insure the accuracy of its assertions.” Gertz, supra, 418 U.S. at 346, 94 S.Ct. at 3010. Fault then must be held to consist of two elements: carelessness and falsity.1

In order for the jury to decide the issue of fault, it must weigh together and balance the facts concerning falsity and the facts concerning carelessness. The degree of uncertainty in the juror’s mind on the issue of truth and the degree of uncertainty on the issue of carelessness must be taken into account at the same time in arriving at a conclusion on the issue of fault. Fairness and coherent consideration of the issue lead us to the conclusion that the party with the burden of proving carelessness must also carry the burden of proving falsity as a part of the concept of fault.

In addition, a rule that places the burden of proving truth on the defendant permits the imposition of liability

without fault in certain situations. “[W]hen the trier of fact is unable to determine the truth or falsity of a proposition of fact, he must render his decision against the party having the burden of proof. Consequently, in a jury trial the judge by allocating the burden of proof decides each issue of fact which the jury is unable to decide.” E. Morgan, Some Problems of Proof Under the Anglo-American System of Litigation 70-71 (1956). When the jury is uncertain on the issue of the truth or falsity of the statement, as it may have been in the present case, it must find in favor of the plaintiff. A presumption of falsity thus permits liability without fault in the close case, in the case in which the jury is uncertain. See County Court of Ulster County v. Allen, 442 U.S. 140, 99 S.Ct. 2213, 2224-30, 60 L.Ed.2d 777 (1979), a criminal presumption case discussing the significant effect that burden-shifting presumptions may have on the outcome of a close case and requiring a close causal connection between the proved fact and the presumed fact. In libel and slander cases generally, there is no particular causal connection between the proved fact (the making of a derogatory statement) and the presumed fact (the falsity of the statement). There is no particular reason to presume falsity.
The Supreme Court has said that before the status quo is changed judicially in libel cases by an award of money damages against the publisher, the First Amendment requires that the plaintiff prove fault. Falsity is an element of fault under the First Amendment that should be proved and not presumed. The District Court therefore erred in placing the burden on the defendant. As a matter of federal First Amendment law, the burden must be placed on the plaintiff to show falsity.
Id. at 375-76 (footnote omitted).

-B-

Having decided that it was appellee’s burden as plaintiff to prove the falsity of the article published in the Inquirer, we must decide whether appellee sustained his burden.

The statements in question were: “We called the 17th District police station and asked who was driving car 17B that day and was [sic ] told it was occupied by Sgt. Samuel Dunlap”; and, “Asked if he was driving car 17B that day, he [appellee] said, ‘more than likely.’ ” Appellee acknowledges that in one sense it may be said, as appellant argues, that the statements “reported only the undisputed and true facts.” However, appellee urges, taken as a whole the article, headline, and photographs gave rise to a false inference. Thus the issue is whether a finding of falsity may be based on a false inference drawn from true facts. We believe it may be.

Taken in context, the statement implied that appellee was in car 17B on the day in question. This implication was false; the evidence is that when the photograph was taken, another officer was in car 17B. N.T. 6/8/79, 361. It seems to us that “true facts” that in context imply a falsehood are, in an action for defamation, not “true.” As one commentator has said:

A publisher is, of course, liable for the implications of what he has said or written, not merely the specific, literal statements made. To say, for example, that a man and a woman married, but not to each other, spent a night together in a hotel room, will be interpreted as an assertion that the pair engaged in sexual activities, because the average reader will assume that “they saith not a pater noster there.”
The literal “truth” of a publication need not be established, only that the statement is “substantially true.” The proof of “truth” must go to the “gist” or “sting” of the defamation. The test is “whether the [alleged] libel as published would have a different effect on the mind of the reader from that which the pleaded truth would have produced.
Sack, Libel, Slander, and Related Problems, 50-51, 137-138 (1980) (footnotes omitted) (emphasis in original).

No Pennsylvania case has addressed this issue. Some cases say that an “innuendo” may be the basis of defamatory meaning. Bogash v. Elkins, 405 Pa. 437, 176 A.2d 677 (1962) (innuendo must be warranted, justified and supported by the publication); Sarkees v. Warner-West Corp., 349 Pa. 365, 369, 37 A.2d 544, 546 (1944) (innuendo may not “put an unfair and forced construction on the interpretation of the publication”); Naulty v. Bulletin Co., 206 Pa. 128, 55 A. 862 (1903) (purpose of innuendo is to define defamatory meaning). But as used in these cases, “innuendo” refers to the early common law method of pleading defamatory meaning and not to the “implication” of the communication. As explained by Judge Adams, writing for the Third Circuit:

The term “innuendo” has two possible meanings in the law of defamation, one of which is technical and the other of which is not. The narrow, technical meaning of the term is associated with the common law system of pleading, under which an “innuendo” was an explanation of the defamatory meaning of a communication in light of extrinsic circumstances, the existence of which was averred to in a prefatory statement called an “inducement.” See Restatement, Second, Torts, § 563, comment (f) (1977). That is not the meaning of the word as employed in this opinion. The second, and here the relevant, meaning of “innuendo” is that which it has in common language, namely, the insinuation or implication which arises from the literal language used in a statement or set of comments.
Pierce v. Capital Cities Communications, Inc., 576 F.2d 495, 499 n. 7 (3d Cir.) (statements and “innuendoes” in broadcast not capable of defamatory meaning under Pennsylvania law), cert. denied, 439 U.S. 861, 99 S.Ct. 181, 58 L.Ed.2d 170 (1978).

In the absence of any Pennsylvania case, we are free to adopt, and have concluded that we should adopt, the approach of sister states, and hold that the literal accuracy of separate statements will not render a communication “true” where, as here, the implication of the communication as a whole was false. See Sack, supra at 50-51, 139-40 (collecting cases). As one court has said, “It is not sufficient to take every sentence separately and demonstrate its individual accuracy, detached and wrenched out of context.” Clark v. Pearson, 248 F.Supp. 188, 191 (D.D.C.1965).

-HI-

The remaining issue is whether, although defamatory and false, the implication that appellee was in car 17B was published with actual malice or reckless disregard for the truth, as required by New York Times Co. v. Sullivan, supra, and its progeny.

The term “actual malice” is not easy to understand or apply. Prosser, Law of Torts § 118 (1971) (“It is certainly highly unfortunate that the Court chose to cling to the discredited term ‘malice’, which has meant all things to all men, and is here highly misleading.”). In attempting to explain what is meant by “actual malice,” the Court has said that it is “an extreme departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers.” Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967). This court has emphasized how “extreme” must be the departure by saying:

A showing of no more than negligence, carelessness, bad judgment or inaccuracy in the preparation and publication of an allegedly defamatory article is constitutionally insufficient to show malice.
Brophy v. Philadelphia Newspapers Inc., supra 281 Pa.Super. at 602, 422 A.2d at 633.

Here, we are unable to find that appellant acted with the requisite malice, for the record shows that the reporters did everything within their power to ascertain the identity of the police officer in car 17B: there was no departure from the standards of “responsible publishers.” As discussed above, see pages 9-10 supra, the reporters made two attempts to verify the information, including interviewing the subject of the story, but they were prevented from doing so by the police department and were therefore forced to rely on appellee’s assurance that he was “more than likely” in the car. They had no access to the police records or logs—the police did. It is not apparent what more the reporters could have done to ascertain the identity of the officer in car 17B, especially considering that their surveillance had been discovered and further observation was therefore impossible. N.T. 6/8/79, 333.

The reporters’ reliance on appellee’s statement that he was “more than likely” in the car did not constitute reckless disregard of the truth, even though the statement had not been double-checked. One of the issues in Curran v. Philadelphia Newspapers, Inc., 497 Pa. 163, 439 A.2d 652 (1981), concerned remarks attributable to a “reliable source” who had suggested that the plaintiff, a former United States Attorney, would have been asked to resign if had had not done so. The reliable source was an assistant to the Assistant Attorney General who “was familiar not only with general office procedure but also with the inner workings of the [Criminal] Division” and “had displayed his familiarity” in conversations with the story’s reporter. Id., 497 Pa. at 179, 439 A.2d at 660. The Supreme Court held that:

The actual malice standard of Times v. Sullivan permits no recovery for the publication of information, obtained from a reliable source, which directly relates to a public official’s conduct in office. Indeed, publication of such information in justified reliance on a source is wholly the antithesis of publication with knowledge that the information is false. Nor can it be said that publication in justified reliance on a source displays reckless disregard of whether such information is true or false.
Id., 497 Pa. at 179, 439 A.2d at 660.

If it does not constitute reckless disregard of the truth to rely on information obtained from a source a reporter could expect would be familiar with the subject, then a fortiori it does not constitute reckless disregard to rely on information obtained from the subject himself, namely, appellee.

The order of the lower court is reversed and judgment n. 0. v. is entered.

BECK, J., files a concurring opinion.

BECK, Judge,

concurring:

I endorse the majority’s well-reasoned view that as the public official-libel plaintiff, Sergeant Dunlap had the burden of establishing the falsity of the defamatory material.

I depart from the majority’s view, however, and would hold that in matters dealing with public officials a finding of falsity may not be based on false inferences drawn from true facts. While I find the majority’s holding correct in matters where public officials are not involved, I conclude that a different standard should be established where public officials are involved.

In the instant case, I would not permit a finding of falsity where a recipient could draw false inferences from statements which the plaintiff admitted were true.

The majority’s holding too broadly restricts the press’ freedom to publish comment and criticism on official conduct. Too stringent constraints may deter critics of official conduct “from voicing their criticism, even though it is believed to be true, because of doubt whether it can be proved in court or fear of the expense of having to do so. They [would] tend to make only statements which ‘steer far wider of the unlawful zone ....’” New York Times Co. v. Sullivan, 376 U.S. 254, 279, 84 S.Ct. 710, 725, 11 L.Ed.2d 686 (1964) (citation omitted).

In litigation involving official conduct, the court must weigh the potential mischief that critics of public officials may make against giving the press wider latitude in reporting and criticizing public officials and public policies. To be informed on matters of public interest, a democratic people must have constant recourse to a vigilant and vigorous press.

Therefore, I would hold that Dunlap failed to adduce evidence proving the falsity of the defamatory material. Accordingly, I would enter judgment for the appellant and would abstain from further inquiry in this matter.

Nevertheless, since the majority’s reasoning has elicited a discussion of the “Times malice” standard, I offer a brief comment which may further clarify that principle. The “Times malice” criterion as interpreted in this Commonwealth requires that

public officials .. . prove, with ‘convincing clarity,’ that the defamatory statements relating to their official conduct were 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 Co. v. Sullivan, 376 U.S. 254 [84 S.Ct. 710, 11 L.Ed.2d 686] . .. (1964) .... What constitutes a reckless disregard of the falsity of a statement was clarified in St. Amant v. Thompson, 390 U.S. 727, 731 [88 S.Ct. 1323, 1325, 20 L.Ed.2d 262] . . . (1968):
[C]ases are clear that reckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant, in fact, entertained serious doubt as to the truth of the publication. Publishing with such doubts shows reckless disregard to truth or falsity and demonstrates actual malice.

Brophy v. Philadelphia Newspapers, Inc., 281 Pa.Super.Ct. 588, 595-96, 422 A.2d 625, 629-30 (1980) (emphasis added), allocatur refused, February 3, 1981.

It is important to note that in the Commonwealth of Pennsylvania to meet the Times malice test publication must be made with reckless disregard or with serious doubt.

The majority does not frame its well reasoned opinion in the context of serious doubt although the lower court opinion addresses the issue of serious doubt. It is therefore important to underscore that some doubt is not serious doubt and that a lack of absolute certainty is not tantamount, without more, to serious doubt. “Garrison v. Louisiana, 379 U.S. 64, [74, 85 S.Ct. 209, 215, 13 L.Ed.2d 125] . . . (1964) . . . emphasized the necessity for a showing that a false publication was made with a ‘high degree of awareness of . . . probable falsity.’ ” St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 1325, 20 L.Ed.2d 262 (1968). Some doubt on the part of the publisher cannot support the requisite finding of “Times malice.” “The rationale for [the] strict [“Times malice”] standard is the recognition that ‘erroneous statement is inevitable in free debate, and that it must be protected if the freedoms of expression are to have the “breathing space” that they “need ... to survive Brophy, 281 Pa.Superior Ct. at 602, 422 A.2d at 633 (quoting New York Times Co. at 271-72, 84 S.Ct. at 721) (citation omitted).

The trial court permitted a finding of serious doubt (“Times malice”) where the appellant published with some doubt or without absolute independent substantiation of every published statement. As stated in New York Times Co. at 279, 84 S.Ct. at 725, “[a] rule compelling the critic of official conduct to guarantee the truth of all his factual assertions—and to do so on pain of libel judgments virtually unlimited in amount—leads to a comparable ‘self-censorship .... ’ The rule thus dampens the vigor and limits the variety of public debate [and] is inconsistent with the First and Fourteenth Amendments.” (Footnote omitted.)

      . The parties agree, as they must, that appellee is a public official and is therefore held to the standard of proof set forth in New York Times Co. v. Sullivan, supra.

      . Appellant asks us to “make an independent examination of the whole record,” Appellant’s Brief at 11, since, in addition to judgment n. o. v., it is also seeking a new trial on the argument that the verdict was against the weight of the evidence. It is true that the standard of review is different depending on whether judgment n. o. v. or a new trial is sought. Ditz v. Marshall, 259 Pa.Superior Ct. 31, 393 A.2d 701 (1978). Here, we have used the judgment n. o. v. standard, for appellant is primarily seeking a judgment n. o. v. Appellant’s Brief at 41 (“The record in this action demonstrates that defendant is entitled to a judgment n. o. v., and at the very least, to a new trial.”)

      . We note that the meaning of an allegedly defamatory communication can only be understood when the communication is read in context. Corabi v. The Curtis Publishing Co., supra. Therefore, the context of the article here properly includes its headline. See Brophy v. Philadelphia Newspapers Inc., supra (headline could lead reader to believe that feud was cause of shooting). The Restatement (Second) of Torts stresses the importance of the headline in determining the meaning of a newspaper article:
      Circumstances in various types of situations determine the extent of the context of the imputation complained of. Thus, the text of a newspaper article is ordinarily not the context of the headline, although it may explain or qualify a defamatory imputation conveyed when the headline alone is read. This is true because the public frequently reads only the headlines of a newspaper or reads the article itself so hastily or imperfectly as not to realize its full significance.
      Restatement (Second) of Torts § 563, Comment d.

      . Since we do not believe an intentional defamation is involved here, see Part III, but rather an unintentional defamation, the test is an objective test—what a reasonable recipient would have understood from the article. As the Restatement explains:
      [I]t is not enough that the particular recipient of the communication actually attaches a defamatory meaning to it. If the defamatory meaning is not intended, it must be a reasonable construction of the language. Thus the fact that a person who is prone to think evil of others, hearing words obviously intended to be innocent, by an unreasonable construction attaches to them a derogatory meaning, does not render the language defamatory.
      Restatement (Second) of Torts § 563, Comment c.

      . The court in Steaks Unlimited suggested, without deciding, that placing the burden of proving truth on the defendant was unconstitutional:
      Pennsylvania’s placement of the burden of proving the truth of the communication on the defendant, Corabi v. Curtis Publishing Co., 441 Pa. at 449-50, 273 A.2d at 908-09, would appear to be contrary to the constitutional limitations on state libel law enunciated by the Supreme Court. See e.g., Gertz, 418 U.S. at 347 n. 10, 94 S.Ct., at 3010 (rejecting Justice White’s view that it would be constitutional for a state to require libel defendants to prove the truth of an allegedly defamatory statement); New York Times, 376 U.S. at 271, 84 S.Ct. at 721 (“Authoritative interpretations of the First Amendment guarantees have consistently refused to recognize an exception for any test of truth ... and especially one that puts the burden of proving truth on the speaker.”).

        Steaks Unlimited, Inc. v. Deaner, supra at 274-75.

      . This rule has been codified by the Act of Aug. 21, 1953, P.L. 1291, now at, P.L. 586, Act. No. 142, 42 Pa.C.S.A. § 8343 (1981 Pamphlet) which reads in pertinent part:
      (b) Burden of defendant—In an action for defamation, the defendant has the burden of proving, when the issue is properly raised:
      (1) The truth of the defamatory communication.

      . The Restatement points out that the common law rule has been “eroded”:
      At common law the majority position has been that although the plaintiff must allege falsity in his complaint, the falsity of a defamatory communication is presumed. It has been consistently held that truth is an affirmative defense which must be raised by the defendant and on which he has the burden of proof. The practical effect of this rule has been eroded, however, by the recent Supreme Court holdings that the First Amendment to the Constitution requires a finding of fault on the part of the defendant regarding the truth or falsity of the communication. Pending further elucidation by the Supreme Court, the Institute does not purport to set forth with precision the extent to which the burden of proof as to truth or falsity is now shifted to the plaintiff.
      Restatement (Second) of Torts § 581 A, Comment b.

      . One commentator has cited Moyer as an example of a state court’s express recognition of post-Geriz burdens of proof:
      Before 1964, truth was a “defense” in defamation cases—which meant that falsity would be assumed unless the defendant pleaded affirmatively that his aspersion was true and then came forward at the trial with evidence of its truth. Once all the proof was in, the defendant had the burden of convincing the court that the disparagement was true. The revolution changed all this: the United States Supreme Court has, by implication, allocated an issue of falsity to the plaintiff by holding that plaintiffs have no cause of action unless they establish the defendants’ fault. Public officials or public persons are required by Times and Walker to establish Times malice; and private persons are required by Gertz to establish at least negligence. These constitutional burdens requiring plaintiffs to demonstrate the defendants’ fault make no sense unless the plaintiff shows that the disparagement was untrue. Statements of defamatory truth are not actionable as either libel or slander. Some state courts have expressly recognized this constitutional reallocation of the burdens on the truth issue [footnote citing Moyer, omitted].

        Morris on Torts 350 (2d ed. 1980).

      . The lower court, too, found the article was false, and said: “The key issue is the necessary implication of the language, no matter how it was couched.” Slip op. at 16.

      . Appellee does not argue, and did not prove, that it was false for the article to say that police corruption existed, and to imply that whoever was in car 17B was involved in police corruption. Rather, his argument is only that he himself was not in car 17B at the time the photograph was taken, and that therefore the implication that he was false. Appellee’s Brief at 4, 6, 12, 13, 16.

      . In Brophy v. Philadelphia Newspapers, Inc., 281 Pa.Super.Ct. 588, 422 A.2d 625 (1980), allocatur refused, February 3, 1981, the trial court held that a police commissioner and two police officers were public officials to whom the New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), standard applied. On appeal to the Superior Court neither the police commissioner nor the police officers contested their designation as public officials. Similarly, in the instant case the trial court held that Sergeant Dunlap was a public official whose case was controlled by the “Times malice” test. As in Brophy, on appeal to the Superior Court the public official designation of Sergeant Dunlap was not contested. Therefore, for the purposes of this litigation we assume, without deciding, the appellee’s public official status. See Rosenblatt v. Baer, 383 U.S. 75, 85-86, 86 S.Ct. 669, 675-676, 15 L.Ed.2d 597 (1966).

      . “The press is the necessary representative of the public’s interest in this context and the instrumentality which effects the public’s rights.” Saxbe v. Washington Post Co., 417 U.S. 843, 864, 94 S.Ct. 2811, 2822, 41 L.Ed.2d 514 (1974) (Powell, J., dissenting) (quoted approvingly in Herbert v. Lando, 441 U.S. 153, 189, 99 S.Ct. 1635, 1655, 60 L.Ed.2d 115 (1979) (Brennan, J., dissenting in part)).

      . St. Amant at 731, 88 S.Ct. at 1325.