author: McEWEN, Judge: BECK, Judge,

text:
    484 A.2d 72
    Ronald R. RUTT, Sr., v. BETHLEHEMS’ GLOBE PUBLISHING CO., John Strohmeyer and James B. Gaffney
    (Appellant at No. 671)
    (Appellants at No. 1256).
    Superior Court of Pennsylvania.
    Argued Dec. 9, 1981.
    Filed April 6, 1984.
    Petition for Allowance of Appeal Granted Aug. 9, 1984.

      Robert C. Brown, Jr., Easton, George K. Keenan, Bethlehem, for appellant (at No. 671) and for appellee (at No. 1256).
    J. Stephen Kreglow, Easton, for appellants (at No. 1256) and for appellees (at No. 671).
    Before CAVANAUGH, McEWEN and BECK, JJ.
   McEWEN, Judge:

Presently before this Court are the consolidated appeals from the disposition of cross-motions for summary judgment filed by the parties to a libel action. The trial court granted the motion for partial summary judgment filed by Ronald R. Rutt, Sr., hereinafter appellant, after concluding as a matter of law that (1) the article at issue was capable of defamatory meaning, and (2) that appellant was a private figure plaintiff for purposes of the libel action. The motion of appellees, the Bethlehems’ Globe Times, John Strohmeyer and James B. Gaffney, for partial summary judgment upon the issue of the burden of proof of a private figure plaintiff in a defamation suit against a media defendant was also granted, the court holding that Pennsylvania law required a private figure plaintiff to establish that the defamatory matter was published with actual malice, as that term is defined in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964).

We conclude that the distinguished Judge Richard D. Grifo properly determined the article to be capable of defamatory meaning and properly held that appellant was a private figure plaintiff. We are constrained, however, to reverse the entry of partial summary judgment on the issue of the burden of proof of a private figure plaintiff in a libel action.

I. Factual Background

Appellant, Ronald R. Rutt, Sr,, commenced a defamation action to recover damages for the publication of an allegedly libelous article in the Bethlehems’ Globe Times issue of August 29, 1977. The Bethlehems’ Globe Publishing Co., John Strohmeyer, Editor, and James B. Gaffney, News Editor of the Globe Times, were named as defendants. The challenged article is an extended obituary relating to the death of Randy Lee Rutt, the son of appellant, who died as a result of a self-inflicted gunshot wound on August 28, 1977. The text of the article is set forth as follows:

GLOBE-TIMES

August 29, 1977

Randy Rutt, 20,

Served in Marines

A 20-year-old veteran of the U.S. Marines who served in the Mediterranean during the Lebanon crisis, was dead on arrival Saturday night at St. Luke’s Hospital.

City police said Randy Lee Rutt apparently shot himself to death with a rifle belonging to his father at the home of Mr. and Mrs. Joseph Hegedus, 255 E. North St., a couple days after the victim’s father asked him to leave his home at 804 Linden St.

Earlier this month the younger Rutt was discharged from military service, police said.

When police arrived at the Hegedus house about 7:20 p.m., the youth was found on the floor between the living room and dining room. Officers said he was still breathing when he was taken to the hospital.

Police said that a 14-year-old child in the Hegedus home told them that before the gun went off Rutt uttered that he had no friends and no one loved him.

Born in Bethlehem, he was a son of Ronald and Bernice Frey Rutt. His father is the owner of Ronn Studio & Color Laboratory, a former city policeman and was a Republican write-in candidate for mayor in the spring primary.

The victim was a member of Salem Lutheran Church.

Surviving, besides his parents, are three brothers, Ronald Jr. and Craig, at home, and Jeffrey of Bethlehem, and a paternal grandmother, Dorothy Stiles of Hellertown.

Services will be held at 2 p.m. Wednesday at the Connell Funeral Home, 245 E. Broad St. Burial will be in Memorial Park Cemetery.

Appellant alleged in his complaint that the following portion of the article contained false, malicious and defamatory matter concerning the plaintiff:

City police said Randy Lee Rutt apparently shot himself to death with a rifle belonging to his father at the home of Mr. & Mrs. Joseph Hegedus, 256 E. North St., a couple days after the victim’s father asked him to leave his home at 804 Linden St.

Appellant further alleged that the article, as understood by many readers of the newspaper, related that the death of Randy Lee Rutt was a suicide caused by the lack of love or affection of appellant for his son and was a result of the action of appellant in asking his son to leave his home. Appellant averred, contrary to the article in the Globe Times: (1) that Randy Lee Rutt, following his discharge from the United States Marines, returned to Bethlehem where he resided with his mother, separate and apart from appellant until the time of his death; (2) that Randy Lee Rutt was at all times following his return from the Marines on good and friendly terms with appellant; (3) that Randy Lee Rutt did not reside with appellant at 804 Linden Street at any time after his return from the service; and (4) that appellant did not ask his son to leave his home at 804 Linden Street. Appellant seeks to recover compensatory damages as a result of the publication of false and libelous statements in the article which, he alleges, resulted in his exposure to public hatred, contempt and ridicule and in the impairment of his reputation and standing in the community-

After the depositions of appellant and James Gaffney, the News Editor of the Globe Times, had been taken, counsel for appellant and counsel for appellees each presented oral motions for summary judgment to the trial judge at a pre-trial conference held on February 23, 1981. The hearing court granted the motion for summary judgment of plaintiff/appellant on the following issues: (1) that the article was capable of defamatory meaning; and (2) that the plaintiff was a private individual at the time the article was published, as opposed to a public figure, within the meaning of Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974). The motion of appellees for summary judgment upon the issue of the burden of proof of a private figure plaintiff in a defamation suit against a news media defendant was granted and the court ruled that a private figure plaintiff in Pennsylvania must prove that the defamatory matter was published with actual malice as defined in New York Times Co. v. Sullivan, supra. Appellant subsequently filed an appeal to this Court challenging the application of the actual malice standard to a private figure plaintiff in a defamation action against a media defendant. Appellees thereafter filed a petition for permission to appeal the judgments rendered in favor of appellant on the related issues, which were deemed by the court in an amended order to contain controlling questions of law as to which there were substantial grounds for a difference of opinion in accordance with 42 Pa.C.S. § 702.

II. Defamatory Character of the Article

The plaintiff in an action for defamation has the burden of proving, under Pennsylvania law, the defamatory character of the communication, its publication by the defendant, and the understanding by the recipient of its applicability to the plaintiff as well as its defamatory meaning. Section 8343 of the Judicial Code, 42 Pa.C.S. § 8343, provides:

§ 8343. Burden of proof
(a) Burden of plaintiff. — In an action for defamation, the plaintiff has the burden of proving, when the issue is properly raised:
(1) The defamatory character of the communication.
(2) Its publication by the defendant.
(3) Its application to the plaintiff.
(4) The understanding by the recipient of its defamatory meaning.
(5) The understanding by the recipient of it as intended to be applied to the plaintiff.
(6) Special harm resulting to the plaintiff from its publication.
(7) Abuse of a conditionally privileged occasion.
(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.
(2) The privileged character of the occasion on which it was published.
(3) The character of the subject matter of defamatory comment as of public concern.

It is the function of the trial court to determine, in the first instance, whether the communication complained of is capable of defamatory meaning. Rybas v. Wapner, 311 Pa.Super. 50, 54, 457 A.2d 108, 110 (1983); Braig v. Field Communications, 310 Pa.Super. 569, 574 n. 2, 456 A.2d 1366, 1369 n. 2 (1983). If the court determines that the communication is capable of a defamatory meaning, it then becomes the jury’s function to decide whether it was so understood by those who read it. Corabi v. Curtis Publishing Co., 441 Pa. 432, 442, 273 A.2d 899, 904 (1971); Cosgrove Studio & Camera Shop, Inc. v. Pane, 408 Pa. 314, 317-18, 182 A.2d 751, 753 (1962); Dunlap v. Philadelphia Newspapers, Inc., 301 Pa.Super. 475, 482, 448 A.2d 6, 10 (1982); Brophy v. Philadelphia Newspapers, Inc., 281 Pa.Super. 588, 592, 422 A.2d 625, 628 (1980); Vitteck v. Washington Broadcasting Co., Inc., 256 Pa.Super. 427, 430, 389 A.2d 1197, 1199 (1978). See Restatement (Second) Torts, Section 614. A statement is defamatory if it tends to harm the reputation of another so as to lower him in the estimation of the community or deter third persons from associating or dealing with him. Steaks Unlimited, Inc. v. Deaner, 623 F.2d 264, 270 (3rd Cir.1980); Marcone v. Penthouse International, Ltd., 533 F.Supp. 353, 357 (E.D.Pa. 1982); Corabi v. Curtis Publishing Co., supra 441 Pa. at 442, 273 A.2d at 904; Cosgrove Studio & Camera Shop, Inc. v. Pane, supra 408 Pa. at 317-18, 182 A.2d at 753; Rybas v. Wapner, supra, 311 Pa.Super. at 54, 457 A.2d at 110. In determining whether the challenged communication is defamatory, the court must decide whether the communication complained of can fairly and reasonably be construed to have the libelous meaning ascribed to it by the complain-

ing party. Corabi v. Curtis Publishing Co., supra; Bogash v. Elkins, 405 Pa. 437, 176 A.2d 677 (1962); Beckman v. Dunn, 276 Pa.Super. 527, 533, 419 A.2d 583, 586 (1980); Doman v. Rosner, 246 Pa.Super. 616, 371 A.2d 1002 (1977). In making this determination upon the meaning of the article, it must be construed as a whole, Corabi v. Curtis Publishing Co., supra 441 Pa. at 444, 273 A.2d at 906; Brophy v. Philadelphia Newspapers, Inc., supra 281 Pa. at 594, 422 A.2d at 629; Beckman v. Dunn, supra 276 Pa.Super. at 533, 419 A.2d at 586, and each word must be read in the context of all the other words. MacRae v. Afro-American Co., 172 F.Supp. 184, 186 (E.D.Pa.1959), aff'd., 274 F.2d 287 (3rd Cir.1960).

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

Corabi v. Curtis Publishing Co., supra 441 Pa. at 447, 273 A.2d at 907, quoting Boyer v. Pitt Publishing Co., 324 Pa. 154, 157, 188 A. 203, 204 (1936); Accord Rybas v. Wapner, supra 311 Pa.Super. at 54, 457 A.2d at 110; Brophy v. Philadelphia Newspapers, Inc., supra 281 Pa. at 594, 422 A.2d at 629; Beckman v. Dunn, supra 276 Pa.Super. at 533, 419 A.2d at 586.

Appellant argues that the article is false and defamatory because the average reader of the Globe Times “would believe that appellant had caused or contributed to the suicide of his son for the reason that appellant did not love him and had asked him to leave his home a few days before the apparent suicide.” (Brief of Appellant at p. 2). Appellant testified that he had not made such a request of his son and that his son did not reside with him at the 804 Linden St. address but had lived elsewhere with his mother.

The U.S. District Court for the Eastern District of Pennsylvania in MacRae v. Afro-American Co., supra, was faced with a defamation action arising from a factually similar situation. The plaintiff mother of a deceased co-ed brought an action for defamation against a newspaper defendant for publication of an article which the court determined could fairly be read to mean that the plaintiffs daughter had possibly committed suicide and that plaintiff was at least partly responsible for her daughter’s death. The article stated that the plaintiff’s daughter had been found deád in her apartment in New York City where she was residing for the summer; that she was “believed to have been despondent over her mediocre marks” at college; that it was “rumored” that the young woman’s mother was “extremely displeased over her daughter’s scholastic standing”; and that it was “whispered” that the daughter “had been told not to come home unless she improved her grades.” Id. at 18.

The language in the allegedly defamatory obituary in the instant case, just as in the news article in MacRae, can reasonably be construed to imply that appellant had in some way caused or contributed to the apparent suicide of his son by showing a lack of parental love and by asking him to leave the family home. The testimony of appellant at his deposition reveals in fact just such a public understanding as appellant stated that neighbors and acquaintances criticized him for what was perceived by them to be harshness and lack of parental love. The appearance of the language relating that the father had asked the boy to leave the home, in the same sentence as the information that “Rutt apparently shot himself to death with a rifle belonging to his father”, provides support for the implication that plaintiff in some fashion caused or contributed to the death of his son. This defamatory implication was intensified in a subsequent sentence which stated that “[p]olice said that a 14 year old child in the Hegedus home told them that before the gun went off Rutt uttered that he had no friends and no one loved him.” Thus, we conclude that the trial court properly granted summary judgment in favor of appellant upon the issue of whether the article was capable of a defamatory meaning. See MacRae v. Afro-American Co., supra. It is, therefore, for the jury to determine upon remand, “ ‘whether it was so understood by the recipient[s]....'" Doman v. Rosner, supra 246 Pa.Super. at 622, 371 A.2d at 1005 quoting Corabi v. Curtis Publishing Co., supra 441 Pa. at 441, 273 A.2d at 904.

III. Status of Appellant

Appellees challenge the finding of the trial court that appellant was a private figure plaintiff, and argue that at the time of the publication of the article at issue appellant was a public figure who was required to prove that appel-lees published the article with knowledge of its falsity or with reckless disregard as to its truth or falsity.

A determination of the status of appellant requires an examination of the developments in the law of defamation that have followed upon New York Times Co. v. Sullivan, supra. The Supreme Court therein established a constitutional privilege applicable to media defendants for the publication of defamatory falsehoods concerning public officials. This privilege operates to bar a public official from the recovery of damages for the publication of defamatory falsehoods unless the plaintiff proves by clear and convincing evidence that the defamatory publication was made with “ ‘actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” Id. 376 U.S. at 279-280, 84 S.Ct. at 725-726, 11 L.Ed.2d 686.

“Three years later, the court extended the New York Times standard to ‘public figures’. Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967).” Wolston v. Reader’s Digest Association, 443 U.S. 157, 163-164, 99 S.Ct. 2701, 2705-2706, 61 L.Ed.2d 450 (1979). In Curtis Publishing Co. v. Butts, supra the Supreme Court expanded the constitutional privilege pronounced in the Sullivan decision so as to protect defamatory criticisms of persons who, although not public officials, “are nevertheless intimately involved in the resolution of important public questions or, by reason of their fame, shape events in areas of concern to society at large.” Curtis Publishing Co. v. Butts, supra 388 U.S. at 164, 87 S.Ct. at 1996, 18 L.Ed.2d 1094 (concurring opinion of Mr. Chief Justice Warren).

The Supreme Court further enlarged the scope of the Sullivan privilege in the plurality opinion of Mr. Justice Brennan in Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971). Justice Brennan there opined that even a private individual plaintiff in a suit against a media defendant for publication of defamatory falsehood “relating to his involvement in an event of public or general concern may be sustained only upon clear and convincing proof that the defamatory falsehood was published with knowledge that it was false or with reckless disregard of whether it was false or not.” Id. at 52, 91 S.Ct. at 1824, 29 L.Ed.2d 296 (footnote omitted). Thus, the Court stretched the “commitment to robust debate on public issues which is embodied in the First Améndment,” to an ephemeral zenith “by extending constitutional protection to all discussion and communication involving matters of public or general concern, without regard to whether the persons involved [were] famous or anonymous.” Id. at 43-44, 91 S.Ct. at 1819-1820, 29 L.Ed.2d 296 (footnote omitted). The Supreme Court soon retreated from the Rosenbloom decision after weighing in Gertz v. Robert Welch, Inc., supra, the competing policy concerns underlying the constitutional privilege established in New York Times Co. v. Sullivan, supra. The Supreme Court in Gertz balanced the interest of society in “uninhibited, robust and wide open” debate on public issues as well as “the need to avoid self-censorship by the news media” against the competing legitimate state interests in protecting the reputational interests of the individual. The Court resolved these “competing concerns” in favor of private individuals and held 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.” Gertz v. Robert Welch, Inc., supra 418 U.S. at 347, 94 S.Ct. at 3010, 41 L.Ed.2d 789 (footnote omitted).

The Court also made clear that the issue of whether appellant was a “public” or “private” figure at the time the allegedly defamatory article was published is a question of law for the court to determine in the first instance. Wolston v. Reader’s Digest Association, supra at 443 U.S. 157, 99 S.Ct. 2701, 61 L.Ed.2d 450 (1979); Time, Inc. v. Firestone, 424 U.S. 448, 96 S.Ct. 958, 47 L.Ed.2d 154 (1976); Gertz v. Robert Welch Inc., supra; Waldbaum v. Fairchild Publications, Inc., 201 U.S.App.D.C. 301, 627 F.2d 1287, cert. denied, 449 U.S. 898, 101 S.Ct. 266, 66 L.Ed.2d 128 (1980). See also Braig v. Field Communications, supra.

The court in Gertz recognized two classifications of public figures:

[The public figure] designation may rest on either of two alternative bases. In some instances an individual may achieve such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts. More commonly, an individual voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues. In either case such persons assume special prominence in the resolution of public questions.
* * * * *
Absent clear evidence of general fame or notoriety in the community, and pervasive involvement in the affairs of society, an individual should not be deemed a public personality for all aspects of his life. It is preferable to reduce the public-figure question to a more meaningful context by looking to the nature and extent of an individual’s participation in the particular controversy giving rise to the defamation.

Id. 418 U.S. at 351-352, 94 S.Ct. at 3012-3013, 41 L.Ed.2d 789.

The Court recognized that an individual does not easily attain the status of an all purpose public figure. Rather, such a status is reserved to those individuals who have “assumed roles of especial prominence in the affairs of society” or “have attained positions of such persuasive power and influence that they are deemed public figures for all purposes.” Id. at 345, 94 S.Ct. at 2997, 41 L.Ed.2d 789. Accord Time, Inc. v. Firestone, supra 424 U.S. at 453, 96 S.Ct. at 965, 47 L.Ed.2d 154.

A. All Purpose Public Figure.

Appellees contend that appellant was, at the time of the publication of the article at issue, an all purpose public figure. Appellees cite numerous cases from other jurisdictions to support their argument that appellant’s status as a police officer of the Bethlehem Police Department, prior to his resignation in March of 1977, caused him to attain the status of a public official. Time, Inc. v. Pape, 401 U.S. 279, 91 S.Ct. 633, 28 L.Ed.2d 45 (1971); Orr v. Lynch, 411 N.Y.S.2d 10, 411 N.Y.S.2d 10, 383 N.E.2d 562 (1978); LaRocca v. New York News, Inc., 156 N.J.Super. 59, 383 A.2d 451 (1978); Rawlins v. Hutchison Publishing Co., 218 Kan. 295, 543 P.2d 988 (1975); Moriarty v. Lippe, 162 Conn. 371, 294 A.2d 326 (1972). Appellees concede that Rutt’s resignation from the police department on March 18, 1977, more than five months before the article in question was published, caused appellant to lose his status as a public official. However, they contend that appellant took the first step toward converting his status of public official to that of a public figure by seeking “public scrutiny of the reasons” for his resignation by requesting an interview with the appellee Globe Times. An article airing the views expressed by appellant and relating his reasons for resignation from the police force was published in the March 18, 1977 issue of the Globe Times. Appellees contend that Rutt completed his transition from public official to public figure status by declaring his candidacy in the primary election for the office of Mayor of the City of Bethlehem on May 7, 1977, less than two months after he publicly announced his resignation from the police force. Appellees conclude, therefore, that appellant’s declaration of candidacy for public office rendered him an “all purpose public figure” in accordance with the decision of the United States Supreme Court in Monitor Patriot Co. v. Roy, 401 U.S. 265, 91 S.Ct. 621, 28 L.Ed.2d 35 (1971). We disagree since, as we will hereinafter discuss, appellant was not an all purpose public figure at the time of the publication of the article.

“Absent clear evidence of general fame or notoriety in the community, and pervasive involvement in the affairs of society, an individual should not be deemed a public personality for all aspects of his life.” Gertz v. Robert Welch, Inc., supra 418 U.S. at 352, 94 S.Ct. at 3013, 41 L.Ed.2d 789. Accord: Wolston v. Reader’s Digest Association, 443 U.S. 157, 165, 99 S.Ct. 2701, 2706, 61 L.Ed.2d 450 (1979). “[A] person can be a general public figure only if he is a ‘celebrity’ — his name a ‘household word’ — whose ideas and actions the public in fact follows with great interest.” Waldbaum v. Fairchild Publications, Inc., supra 201 U.S. App.D.C. at 306, 627 F.2d at 1292. No evidence was introduced which tended to suggest that appellant was an individual of general fame or notoriety in the community or that he was pervasively involved in or enjoyed especial prominence in the affairs of society. Wolston v. Reader’s Digest Association, supra 443 U.S. at 165, 99 S.Ct. at 2706, 61 L.Ed.2d 450; Time, Inc. v. Firestone, supra 424 U.S. at 453-454, 96 S.Ct. at 965, 47 L.Ed.2d 154. Rather, the evidence presented by the parties discloses that appellant resigned from the Bethlehem police force on March 18, 1977, and sought press coverage of the reasons for his resignation. Appellant expressed as his reasons a sense of personal frustration due to lack of advancement on the force as well as general criticism of administration policy in the police department. Almost two months later, on May 7, 1977, appellant announced his write-in-candidacy on the Republican ticket for the mayoral primary election of May 17, 1977. An article appeared in the appellee Bethlehems’ Globe Times on the date of appellant’s announcement of his candidacy and reported upon an interview in which appellant discussed the general aspects of his platform.- The article also related biographical information that included the fact that appellant had served as a city policeman from 1963 until “earlier this year.” Just ten days after appellant declared his write-in-candidacy, he was defeated in the primary election on May 17, 1977. The public issues into which appellant had thrust himself were concluded totally, finally and rather quickly, namely, within sixty days. The article of which appellant complains did not appear until August 29, 1977, more than three months after his ten day candidacy and defeat in the primary election. There is no evidence that the public or the press followed the actions or ideas of appellant with any interest, report or comment. In fact, it would appear that by the time of publication of the challenged article, appellant had for all purposes disappeared from public view, an understandable result, as his only effort to influence matters of public importance had been notably unsuccessful as well as brief. Appellant, not having attained prominence in the affairs of society nor enjoying the status of a “celebrity”, could not, as a matter of law, have been found to be an all purpose public figure.

B. Limited Purpose Public Figure

Having concluded that appellant was not a general purpose public figure, it remains for us to determine whether the trial judge properly held that he was also not a limited purpose public figure. An individual can become a public figure for a limited range of issues by voluntarily injecting himself or becoming drawn into a particular public controversy. Wolston v. Reader’s Digest Association, supra 443 U.S. at 165, 99 S.Ct. at 2706, 61 L.Ed.2d 450; Time, Inc. v. Firestone, supra 424 U.S. at 453, 96 S.Ct. at 965, 47 L.Ed.2d 154; Gertz v. Robert Welch Inc., supra 418 U.S. at 351, 94 S.Ct. at 3013, 41 L.Ed.2d 789. “[A] person has become a public figure for limited purposes if he is attempting to have, or realistically can be expected to have, a major impact on the resolution of a specific public dispute that has foreseeable and substantial ramifications for persons beyond its immediate participants. In undertaking this examination, a court must look through the eyes of a reasonable person at the facts taken as a whole.” Waldbaum v. Fairchild Publications, Inc., supra 201 U.S.App.D.C. at 306, 627 F.2d at 1292. However, “a private individual is not automatically transformed into a public figure just by becoming involved in or associated with a matter that attracts public attention. To accept such reasoning would in effect re-establish the doctrine advanced by the plurality in Rosenbloom....” Wolston v. Reader’s Digest Association, supra 443 U.S. at 167, 99 S.Ct. at 2707, 61 L.Ed.2d 450.

In determining whether a plaintiff in a defamation action has become a limited purpose public figure, a court should first “reduce the public figure question to a more meaningful context by looking to the nature and extent of an individual’s participation in the particular controversy giving rise to the defamation.” Gertz v. Robert Welch, Inc., supra 418 U.S. at 352, 94 S.Ct. at 3013, 41 L.Ed.2d 789 (emphasis added). We must, therefore, first define the public controversy which gave rise to the defamatory article at issue in order to determine whether appellant should be found, by virtue of the nature of his participation therein, to be a limited purpose public figure.

A public controversy is not simply a matter of interest to the public; it must be a real dispute, the outcome of which affects the general public or some segment of it in an appreciable way. The Supreme Court has made clear that essentially private concerns or disagreements do not become public controversies. To determine whether a controversy indeed existed and, if so, to define its contours, the judge must examine whether persons actually were discussing some specific question. A general concern or interest will not suffice. The court can see if the press was covering the debate, reporting what people were saying and uncovering facts and theories to help the public formulate some judgment. It should ask whether a reasonable person would have expected persons beyond the immediate participants in the dispute to feel the impact of its resolution. If the issue was being debated publicly and if it had foreseeable and substantial ramifications for non-participants, it was a public controversy.

Waldbaum v. Fairchild Publications, Inc., supra 201 U.S. App.D.C. at 310-311, 627 F.2d at 1296-1297 (citations and footnotes omitted). See also Time, Inc. v. Firestone, supra 418 U.S. at 454, 96 S.Ct. at 965, 47 L.Ed.2d 154.

Our review of these notions — which we here accept as principles for application to such issues — admits of no other interpretation but that the allegedly defamatory obituary, although containing a matter which appellees may have believed would tweak the prurient and morbid interest of certain members of the public, did not involve a matter of public controversy with foreseeable and substantial ramifications for the members of the general public.

Moreover, appellant in no way injected himself into the events which were the subject of the article at issue in an attempt to influence the resolution of any issues involved therein. See Wolston v. Reader’s Digest Association, supra 443 U.S. at 168, 99 S.Ct. at 2707, 61 L.Ed.2d 450. Time, Inc. v. Firestone, supra 418 U.S. at 454, 96 S.Ct. at 965, 47 L.Ed.2d 154. We conclude, therefore, that appellant was not a limited purpose public figure as the defamatory article did not result from (1) his participation in any manner in (2) a particular public controversy. See Marcone v. Penthouse International, Ltd., 533 F.Supp. 353, 359-360 (E.D.Pa. 1982).

IV. Plaintiffs Burden of Proof

Having concluded that the hearing judge correctly held that the article at issue was capable of a defamatory meaning and that appellant was a private figure plaintiff, we now address the issue of the burden of proof of a private figure plaintiff in a defamation action against a media defendant. The Pennsylvania Supreme Court last addressed this issue in Matus v. Triangle Publications, Inc., 445 Pa. 384, 286 A.2d 357 (1971) cert. denied 408 U.S. 930, 92 S.Ct. 2494, 33 L.Ed.2d 343 (1972). The Matus Court adopted as binding upon it the holding of the plurality opinion of the United States Supreme Court in Rosenbloom v. Metromedia, Inc., supra, which extended the Sullivan privilege to “all discussion and communication involving matters of public or general concern, without regard to whether the persons involved [were] famous or anonymous.” Rosenbloom v. Metromedia, Inc., supra 403 U.S. at 44, 91 S.Ct. at 1820, 29 L.Ed.2d 296 (footnote omitted). Under the holding in Rosenbloom, a private figure defamation plaintiff could not recover actual damages caused by defamatory falsehoods concerning any matter of public interest absent a showing of “actual malice”. See Mathis v. Philadelphia Newspapers, Inc., 455 F.Supp. 406, 411 (E.D.Pa.1978). Three years later the Supreme Court in Gertz v. Robert Welch, Inc., supra, rejected the public interest test of Rosenbloom and held 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.” 418 U.S. at 347, 94 S.Ct. at 3010, 41 L.Ed.2d 789. The Gertz Court thus discarded the public interest test of Rosenbloom in favor of a public figure — private individual classification.

When our Supreme Court adopted the holding of Rosenbloom as binding upon it in Matus v. Triangle Publications, Inc., Justice Pomeroy stated for the majority:

On the preliminary question of extending the reach of New York Times to matters of public or general concern, there was no disagreement among the five members of the Supreme Court who wrote or joined in opinions in support of the judgment affirming the Court of Appeals.

We therefore accept this modification of the law of defamation in Pennsylvania, and with it the corollary that in such cases the reasonable care standard must give way to the more stringent standard of knowing or reckless disregard of falsity. Specifically, we adopt as binding on us the holding of the plurality opinion in Rosenbloom, viz.:

We thus hold that a libel action, as here, by a private individual against a licensed radio station for a defamatory falsehood in a newscast relating to his involvement in an event of public or general concern may be sustained only upon clear and convincing proof that the defamatory falsehood was published with knowledge that it was false or with reckless disregard of whether it was false or not. 403 U.S. 52, 91 S.Ct. 1824, 29 L.Ed.2d 316.

Id. 445 Pa. at 394, 286 A.2d at 363.

The Court in Matus went on to conclude, however, that the defamatory communication there at issue did not “by [any] stretch of imagination [touch upon] a matter of public concern....” Id., 445 Pa. at 398, 286 A.2d at 365. The Court, therefore, held that Rosenbloom

does not require in this case the application of the rule that the appellant’s conditional privilege could be defeated only upon clear and convincing proof that the defamatory falsehood was published with knowledge that it was false or with reckless disregard of whether it was false or not. On the facts before us, it was enough to defeat the privilege that the statement be shown by a preponderance of the evidence to have been uttered with ‘want of reasonable care and diligence to ascertain the truth.’ Purcell v. Westinghouse Broadcasting Co., 411 Pa. 167, 179, 191 A.2d 662, 668 (1963).

Matus v. Triangle Publications, Inc., supra 445 Pa. at 398, 286 A.2d at 365.

Thus, the Matus Court concluded that even under the holding in Rosenbloom the conditional privilege which the defendant had asserted could be defeated by showing mere negligence as the defamatory communication did not relate to a matter of public or general concern. See also Baird v. Dun & Bradstreet, 446 Pa. 266, 274, 285 A.2d 166, 171 (1971). Matus seems, further, to declare, quite unequivocally, that under Pennsylvania law, once the issue of conditional privilege is raised by a defendant who has been sued by a private figure for defamatory communications concerning matters which are not of public concern, the burden of proof of the plaintiff in order to establish abuse of the conditional privilege is “want of reasonable care and diligence to ascertain the truth” or more simply put, negligence. Id. 445 Pa. at 398, 286 A.2d at 365 quoting Purcell v. Westinghouse Broadcasting Co., supra 411 Pa. at 179, 191 A.2d at 668.

“[T]he individual’s right to the protection of his own good name ‘reflects no more than our basic concept of the essential dignity and worth of every human being — a concept at the root of any decent system of ordered liberty.’ ” Gertz v. Robert Welch, Inc., supra 418 U.S. at 341, 94 S.Ct. at 3007, 41 L.Ed.2d 789 quoting Rosenblatt v. Baer, 383 U.S. 75, 92, 86 S.Ct. 669, 679, 15 L.Ed.2d 597 (1966) (concurring opinion by Mr. Justice Stewart). Consistency, as well as prudence, compels the view that the appropriate standard of proof, in defamation actions where the plaintiff is, as heretofore determined, a private figure, should be one of negligence. Such a conclusion is in harmony with Gertz and the views of our Supreme Court in Matus.

The majority of the federal court decisions which have applied Pennsylvania law upon this issue have concluded that a private figure defamation plaintiff, in light of the Gertz decision, may recover actual damages for publication of defamatory falsehoods upon a showing of mere negligence on the part of the publisher. Bufalino v. Associated Press, 692 F.2d 266, 273 (2d Cir.1982) cert. denied 462 U.S. 1111, 103 S.Ct. 2463, 77 L.Ed.2d 1340 (1983) (applying Pennsylvania law); Fitzpatrick v. Milky Way Productions, Inc., 537 F.Supp. 165 (E.D.Pa.1982); Marcone v. Penthouse International, Ltd., supra at 361; Mathis v. Philadelphia Newspapers, Inc., supra. We agree with the analyses presented in those opinions and conclude that the Pennsylvania Supreme Court in light of the decision in Gertz v. Robert Welch, Inc., supra, would apply a negligence standard where the plaintiff is, as heretofore determined, a private figure. We share the view of Judge Pollak:

To be sure, Matus, decided three years prior to Gertz, did not uphold the negligence standard as constitutionally necessary, or constitutionally sufficient, in private plaintiff/private subject matter cases. However, the Matus court clearly signalled its conviction that the standard applied by the trial court below represented a proper — indeed, a generous — accommodation, in such cases, of the interests of news media on the one hand and private figure plaintiffs on the other. Reconsideration of Matus in light of Gertz would presumably prompt recognition that strict liability is not a constitutionally permitted standard in private plaintiff-private subject matter cases, but there seems no reason why Gertz would lead the Pennsylvania Supreme Court to revise its conclusion that the ‘reasonable care’ standard adequately protects the interests of defendants in such cases.

Fitzpatrick v. Milky Way Productions, Inc., supra at 169 (footnotes omitted). Accord Marcone v. Penthouse International, Ltd., supra at 361.

We hold that a private figure defamation plaintiff, seeking compensation for harm inflicted as a result of the publication of defamatory matter, must prove that the defamatory matter was published with “want of reasonable care and diligence to ascertain the truth” or, in the vernacular, with negligence.

We need not presently consider whether there exists any other qualified privilege in the appellees to publish the defamatory matter. The only issue of privilege before this Court is the privilege under Sullivan. We note, however, that the burden is upon the defendant in the first instance to establish the existence of a privileged occasion. Medico v. Time, Inc., 643 F.2d 134, 146 (3rd Cir.1981); cert. denied 454 U.S. 836, 102 S.Ct. 139, 70 L.Ed.2d 116 (1981); McAndrew v. Scranton Republican Pub. Co., 364 Pa. 504, 515, 72 A.2d 780, 785 (1950); Vitteck v. Washington Broadcasting Co., Inc., supra 256 Pa.Super. at 434, 389 A.2d at 1201; 42 Pa.C.S. § 8343(b). Once the defendant has established the existence of a common law or qualified privilege, the burden shifts to the plaintiff to establish an abuse of privilege by the defendant in accordance with 42 Pa.C.S.A. § 8343(a)(7). See Baird v. Dun & Bradstreet, 446 Pa. 266, 285 A.2d 166 (1971); Rankin v. Phillippe, 206 Pa.Super. 27, 30, 211 A.2d 56, 58 (1965); Vitteck v. Washington Broadcasting Co., Inc., supra 256 Pa.Super. at 434, 389 A.2d at 1201.

We, therefore, reverse the entry of summary judgment in favor of appellees on the issue of the burden of proof of a private figure defamation plaintiff and remand for further proceedings consistent with this opinion.

The order of the trial court is affirmed in part and reversed in part and the case remanded for further proceedings, consistent with the foregoing. Jurisdiction is relinquished.

BECK, J., files a concurring and dissenting opinion.

APPENDIX A

GLOBE-TIMES

March 18, 1977

14-Year Veteran Quits Police Job

A Bethlehem policeman with 14 years’ service resigned today, citing “irreconcilable political differences” within the department.

Patrolman Ronald Rutt, 40, said the decision did not come easily, but that his frustration grew to the point where he could no longer continue on the job.

The resignation takes effect immediately.

He is a professional photographer and will now operate his 804 Linden St. studio full time.

Rutt gave his resignation to Baker Team Capt. John Yerk and Commissioner H. Robert Galle this morning.

Yerk said, “I was satisfied with his work. He had good potential. I don’t know what I could have done to further his career. I hope he gave it a lot of thought. He has 14 years invested.

Although Rutt said in his letter he would not elaborate on the “politics in its broadest sense” he said forced his decision, he did bring out a few points in a personal visit to the Globe-Times office today.

He said discipline is not meted out equally in the depart-. ment.

He cited frustration with small things — vacation schedules., rules and regulations, and the like.

Rutt said he was constantly frustrated with situations such as having his vacation disapproved, only to turn up for night shift where he became acting sergeant by default since the other men were on vacation.

“I was acting sergeant and everything else,” Rutt said.

He said he also felt that his 93.4 average at the State Police Academy and two years study of criminal law should have benefited him.

However, after 14 years, he was still doing beat and cruiser patrol.

He also charged that team policing is not favored by all the men as claimed by the city administration, adding that there is insufficient manpower in the department to make it work efficiently.

“And, they are using investigators, (instead of detectives) which gives them no rank, and no money,” Rutt said.

Rutt said that his employees could operate his studio, which does, color, black and white, silkscreening, advertising and other photography.

However, now he will take over.

“It is with deep regret that I leave behind so many years of pleasure and a feeling of well being that I have helped many citizens of the city and my brother officers.”

BECK, Judge,

concurring and dissenting:

I agree with the result reached in the comprehensive and excellent majority opinion. The burden on the plaintiff in this case is limited to the proof of negligence, not actual malice. I reach this result, though, for different reasons from those relied on by the majority, and write to state my view that the analysis by the majority is not in conformity with the law as stated by the Pennsylvania Supreme Court in Matus v. Triangle Publications, 445 Pa. 384, 286 A.2d 357 (1971), cert. denied, 408 U.S. 930, 92 S.Ct. 2494, 33 L.Ed.2d 343 (1972).

The majority departs from the analysis of our Supreme Court in Matus v. Triangle Publications. Matus adopted the approach of a plurality of the United States Supreme Court in Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971), under which a private plaintiff is required to prove malice (“knowing or reckless disregard of falsity”) in a defamation action against a news media defendant if the alleged defamatory statement related to the plaintiffs “involvement in an event of public or general concern.” See Matus, 445 Pa. at 395, 286 A.2d at 363. Instead, the majority favors an analysis under which the burden of proof turns simply on whether the plaintiff is a public or private figure.

Contrary to the majority, I do not believe that subsequent constitutional rulings of the United States Supreme Court and decisions of inferior federal courts interpreting Pennsylvania law direct us to abandon Matus and Rosenbloom entirely. Therefore, I would reaffirm that Matus is still the law in Pennsylvania to the extent that it does not violate constitutional mandate. Applying the Rosenbloom test as Matus dictates, I would then hold that plaintiff/appellant is not required to prove malice, because the alleged defamatory statement in this case does not involve a matter of public or general concern.

My disagreement with the majority centers on the question of the implications of Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974), decided three years after Matus. In Gertz, the Supreme Court retreated from Rosenbloom, finding that the Rosenbloom plurality’s approach was not required by the First Amendment. Rather, the Gertz Court held that the States were free to define for themselves the standard of liability in private-plaintiff defamation actions so long as they did not impose strict liability. Gertz therefore does invite the States to reexamine their libel laws within its framework.

The lack of any post-Gertz decisions on this issue by our Supreme Court means that Pennsylvania has not yet undertaken to reassess or revise the law as stated in Matus. I believe that in this situation we must assume that Matus is still good law to the extent that it does not offend the constitutionally required standards of Gertz and will remain good law until our Supreme Court decides to the contrary.

The holding of Gertz that the imposition of strict liability on the news media for defamation is constitutionally impermissible is an interpretation of the Constitution which is binding on the courts of this Commonwealth. Commonwealth v. Ware, 446 Pa. 52, 284 A.2d 700 (1971), cert. denied, 406 U.S. 910, 92 S.Ct. 1606, 31 L.Ed.2d 821 (1972). Gertz then delineates an area within which the States are free to act. Decisions within that area are therefore a matter of state libel law. Interpretations of state law by the federal courts, while persuasive, do not carry the force of binding precedent. Commonwealth v. Geschwendt, 500 Pa. 120, 454 A.2d 991 (1982); Rader v. Pennsylvania Turnpike Commission, 407 Pa. 609, 182 A.2d 199 (1962).

The majority cites several cases in which lower and intermediate federal courts concluded that if the Pennsylvania Supreme Court were to reexamine Pennsylvania law in light of Gertz, it would reject Matus as no longer good law and apply a negligence standard to all private-plaintiff libel actions whether or not the matter involved was of public or general concern. Federal courts sitting in diversity cases have the luxury of deciding what a state’s highest court would say in a given situation. We, on the other hand, are bound by what the Supreme Court of this Commonwealth has said, and it has said that Rosenbloom is the law in Pennsylvania. I do not find anything in Gertz which prohibits a State from applying a malice standard where Ro-senbloom would require malice and applying a negligence standard in all other cases. Whether our Supreme Court wishes to overrule even this constitutionally permissible aspect of Matus is for the Supreme Court to decide. Until it so decides, we are constrained to adhere to its prior decisions.

I also recommend adherence to Rosenbloom because I believe it is a better statement of the law. We are presented in this case, as in all libel cases involving news reporting, with the difficult but unavoidable task of striking a delicate balance between the freedom of expression safeguarded by the First Amendment and the reputational and privacy interests of individuals. The Supreme Court has recognized that “[s]ome tension necessarily exists between the need for a vigorous and uninhibited press and the legitimate interest in redressing wrongful injury.” Gertz, supra, 418 U.S. at 342, 94 S.Ct. at 3008. In this context, choosing among standards of liability becomes a way of according varying amounts of protection against the possible chilling effect of libel laws on protected speech. Since we are called upon to forge a careful accommodation between two highly important interests, we should articulate a closely tailored standard which provides the greatest amount of protection to the most highly valued speech.

It is my belief that the plurality in Rosenbloom stated such a rule. At the heart of the First Amendment is a “profound national commitment that debate on public issues should be uninhibited, robust, and wide-open.” New York Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 720, 11 L.Ed.2d 686 (1964). The Rosenbloom standard best serves this interest by focusing our inquiry on whether the speech in question concerns the plaintiffs involvement in events of public or general interest, i.e., in public issues. A rule based solely on the characterization of plaintiff as a public or private figure does not adequately address this First Amendment concern. In the words of Justice Brennan, speaking for the Rosenbloom plurality:

If a matter is a subject of public or general interest, it cannot suddenly become less so merely because a private individual is involved, or because in some sense the individual did not “voluntarily” choose to become involved. The public’s primary interest is in the event; the public focus is on the conduct of the participant and the content, effect, and significance of the conduct, not the participant’s prior anonymity or notoriety.1 ... We honor the commitment to robust debate on public issues, which is embodied in the First Amendment, by extending constitutional protection to all discussion and communication involving matters of public or general concern, without regard to whether the persons involved are famous or anonymous.

Rosenbloom, supra, 403 U.S. at 43-44, 91 S.Ct. at 1819-1820 (footnote omitted).

I also agree with Justice Brennan’s view that the public figure/private figure distinction is overinclusive and under-inclusive in its protection of both the First Amendment and the personal reputation interests. I am unable to improve on Justice Brennan’s excellent statement of this point in Rosenbloom:

Voluntarily or not, we are all “public” men to some degree. Conversely, some aspects of the lives of even the most public men fall outside the area of matters of public or general concern. See n. 12, supra; Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965). Thus, the idea that certain “public” figures have voluntarily exposed their entire lives to public inspection, while private individuals have kept theirs carefully shrouded from public view is, at best, a legal fiction. In any event, such a distinction could easily produce the paradoxical result of dampening discussion of issues of public or general concern because they happen to involve private citizens while extending constitutional encouragement to discussion of aspects of the lives of “public figures” that are not in the area of public or general concern.

Id. at 48, 91 S.Ct. at 1822 (footnote omitted).

In Gertz, the Court took the laudable step of sharpening the public figure/private figure distinction by introducing the concept of a limited purpose public figure who becomes a public figure only “for a limited range of issues” (Majority at 80-81). However, Justice Brennan evidently felt that this redefinition of the public figure/private figure distinction did not adequately address the concerns he expressed in Rosenbloom, because he reiterated them in his dissenting opinion in Gertz. See 418 U.S. at 363-364, 94 S.Ct. at 3018-3019 (Brennan, J., dissenting). I agree with Justice Brennan’s views, and for these reasons I believe the Rosen-bloom rule most effectively fosters free debate on public issues while offering the greatest protection against reputa-tional injury caused by careless intrusions into the private aspects of one’s life whether that person be a public or private individual.

Applying Rosenbloom to the facts of the instant case, I would find that the obituary in question does not concern appellant’s involvement in an event of public or general concern. Appellant’s son was not in the public eye, so the circumstances surrounding his death are not generally a matter of public interest. Although the matter of suicide among young people may be a public concern, it does not follow that the particulars of any individual young person’s suicide are a matter of public interest. Were this so, the details of every poor person’s life would be a matter of public interest simply because poverty is a general public concern. From time to time appellant was involved in issues of public concern, such as the mayoral election and working conditions in the police department. This article does not concern itself with appellant’s involvement in any of these issues. Therefore, being of the opinion that Rosen-bloom would not require a malice standard to be applied here, I am in agreement with the majority’s result in this appeal. The summary judgment entered in favor of appel-lees on the issue of plaintiff’s burden of proof must be vacated and the case remanded for further proceedings in which a negligence standard applies.

      . The order granting partial summary judgment on the issue of the burden of proof of a private figure plaintiff in a libel action was a final, appealable order in this case. Appellant had stipulated to his inability to establish malice on the part of appellees and the order, therefore, put appellant “out of court”. See Praisner v. Stocker; 313 Pa.Super. 332, 337, 459 A.2d 1255, 1258-1259 (1983).

      . The further issues presented for review by the amended order of court are: (1) whether the challenged article was capable of a defamatory meaning; and (2) whether the plaintiff was a public or private figure within the meaning of Gertz v. Robert Welch, Inc., supra.

      . Section 8343 of the Judicial Code, which became effective June 27, 1978, is a reenactment of the Act of August 21, 1953, P.L. 1291, § 1, 12 P.S. § 1584(a), which was a verbatim enactment of Section 613 of the Restatement of Torts. See Corabi v. Curtis Publishing Co., 441 Pa. 432, 449 n. 5, 273 A.2d 899, 908 n. 5 (1971).

      . See Appendix A for a full text of the article.

      . See Note, Public Figures, Private Figures and Public Interest, 30 Stan.L.Rev. 157 (1977).

      . Justice O’Brien and Justice Jones joined the opinion written by Justice Pomer-oy. Chief Justice Bell and Justice Eagen concurred in the result and Justice Roberts dissented.

      . I also agree with the majority that the publication at issue is capable of defamatory meaning.

      . But see infra note 3.

      . Contra to the cases cited by the majority is Lorentz v. Westinghouse Elec. Corp., 472 F.Supp. 946 (W.D.Pa.1979). In Lorentz, the district court followed Matus but added a cautionary footnote stating that it was unclear whether Matus was still good law.

      . Apparently Justice Brennan was correct. As the majority notes (at 80), in Wolston v. Readers’ Digest Association, 443 U.S. 157, 99 S.Ct. 2701, 61 L.Ed.2d 450 (1979), the Supreme Court held that involvement in an issue of public or general concern did not necessarily confer on that person the status of a limited public figure.


source: Caselaw Access Project

author: TAMILIA, Judge:

license: Public Domain

text:
    484 A.2d 88
    PRUDENTIAL PROPERTY & CASUALTY INSURANCE COMPANY, Appellant v. Ishmael FALLIGAN and the Pennsylvania Assigned Claims Plan and Albert L. Bricklin Esquire and Stanton Dubin Esquire and John J. Walsh, Jr. Esquire. Paulette DONOVAN v. KEYSTONE INSURANCE COMPANY and Travelers Insurance Company. Appeal of KEYSTONE INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued June 6, 1984.
    Filed Oct. 26, 1984.
    Petition for Allowance of Appeal Denied May 6, 1985.

      Allan C. Molotsky, Philadelphia, for Prudential, appellant.
    Dennis Veneziale, Philadelphia, for Keystone, appellant.
    Herbert H. Yaskin, Philadelphia, for Falligan, appellee.
    Jeffrey A. Less, Philadelphia, for Pa. Assigned, appellees.
    Pamela B. Gagne, Philadelphia, for Travelers, appellee.
    John A. Rothschild, Philadelphia, for Donovan, appellee.
    Before SPAETH, President Judge, and McEWEN and TAMILIA, JJ.
   TAMILIA, Judge:

These appeals are being considered together as they raise the issue of whether an insurance company designated to provide basic loss benefits to an uninsured victim under the No-Fault Act is also required to provide uninsured motorist benefits. We hold that appellants, Prudential Property & Casualty Insurance Company and Keystone Insurance Company, are required to provide such coverage, and therefore, affirm the respective orders from which these appeals have been taken.

In the Prudential appeal, No. 03334 Philadelphia, 1982, claimant, Ishmael Falligan, a pedestrian, was allegedly struck and injured by an automobile operated by Michael Nixon on or about August 29, 1979. The automobile was owned by Jeannette Nixon, Michael Nixon’s mother, but apparently operated by Michael without her permission. Jeannette Nixon is the named insured of a policy of automobile insurance issued by appellant, Prudential, covering the automobile involved in the accident. Appellant paid Falli-gan basic loss benefits pursuant to § 1009.204(a)(4) of the No-Fault Act which provides:

§ 1009.204 Source of basic restoration benefits
(a) Applicable security. — The security for the payment of basic loss benefits applicable to an injury to:
(1) an employee, or to the spouse or other relative of any employee residing in the same household as the employee, if the accident resulting in injury occurs while the victim or deceased victim is driving or occupying a motor vehicle furnished by such employee’s employer, is the security for the payment of basic loss benefits covering such motor vehicle or, if none, any other security applicable to such victim;
(2) an insured is the security under which the victim or deceased victim is insured;
(3) the driver or other occupant of a motor vehicle involved in an accident resulting in injury who is not an insured is the security covering such vehicle;
(4) an individual who is not an insured or the driver or other occupant of a motor vehicle involved in an accident resulting in injury is the security covering any motor vehicle involved in such accident. For purposes of this paragraph, a parked and unoccupied motor vehicle is not a motor vehicle involved in an accident, unless it was parked so as to cause unreasonable risk of injury; and
(5) any other individual is the applicable assigned claims plan.

Falligan apparently had no insurance coverage of his own nor was he a driver of or other occupant of the automobile involved in the accident. See Hayes v. Erie Insurance Exchange, 261 Pa.Super. 171, 395 A.2d 1370 (1978); see also Schimmelbusch v. Royal-Globe Insurance Company, 247 Pa.Super. 28, 371 A.2d 1021 (1977). Falligan then sought to recover uninsured motorist benefits from appellant since Michael Nixon was allegedly uninsured. Appellant denied coverage for uninsured motorist benefits on the grounds that its policy of insurance issued to Jeannette Nixon was without legal effect since the automobile covered was being operated at the time of the accident without her permission and that the Pennsylvania Assigned Claims Plan, rather than itself, was responsible for any uninsured motorist benefits claimed by Falligan.

The facts of the Keystone appeal, No. 00187 Philadelphia, 1983, are similar. The parties to this appeal stipulated that claimant, Paullette Donovan, a pedestrian, sustained personal injuries on November 3, 1979, when she was struck by an automobile owned by Naomi Gathers and insured by appellant, Keystone. The operator of the vehicle that struck Donovan was an unknown person who had stolen the vehicle. At the time of the hit and run, Donovan did not own an automobile and was not covered by any motor vehicle insurance for basic loss benefits or uninsured motorist benefits. She sought no-fault benefits from appellant under the policy of insurance which appellant had issued to Naomi Gathers. Appellant paid Donovan basic loss benefits since it was the applicable security pursuant to § 1009.-204(a)(4). See Hayes v. Erie Insurance Exchange, supra; see also Schimmelbusch v. Royal-Globe Insurance Company, supra. Donovan then sought uninsured motorist benefits from appellant. Appellant refused this request on the grounds that its policy of insurance issued to Gathers was without legal effect since the automobile covered was operated at the time of the accident by an unknown person without the permission of Gathers. Donovan applied to the Pennsylvania Assigned Claims Plan for uninsured motorist benefits. Travelers Insurance Company was designated as the insurer by the Plan but they, too, denied Donovan’s claim for uninsured motorist benefits. Donovan instituted suit against appellant and Travelers Insurance Company for uninsured motorist benefits and subsequently amended her complaint to include a prayer for declaratory relief seeking a determination of responsibility of either appellant or Travelers. The parties entered into a stipulation of facts, as previously recited above, and the lower court held appellant responsible for uninsured motorist benefits to Donovan, and ordered appellant to litigate the merits of the uninsured motorist claim or pay benefits to Donovan without further litigation.

In Tubner v. State Farm Automobile Insurance Company, 496 Pa. 215, 436 A.2d 621 (1981), an uninsured individual was killed when the uninsured car in which he was a passenger was hit by an uninsured motorist. Because no policy of basic loss insurance was applicable to the uninsured victim, a claim was made with the No-Fault Assigned Claims Plan. The Supreme Court permitted recovery, under the assigned claims plan, of uninsured motorist benefits on behalf of the uninsured deceased passenger stating that:

Because assigned insurers are obligated precisely as if they had issued basic loss insurance policies, and because every policy of basic loss insurance issued in Pennsylvania must include uninsured motorist coverage, the right to uninsured motorist benefits under the assigned claims plan follows a fortiori, from a straightforward reading of the statute and the regulation lawfully promulgated thereunder, (footnote omitted)
Any other interpretation of appellee’s statutory rights under the assigned claims plan would frustrate the Legislature’s intention, expressed in Section 102 of this remedial legislation, to provide maximum feasible restoration to all accident victims in a comprehensive, fair, and uniform manner, (footnote omitted) Adoption of State Farm’s view would have the discriminatory effect of affording recovery of general damages to all motor vehicle accident victims injured by uninsured motorists except those covered by the assigned claims plan, and thus would perpetuate many of the harsh results of the outdated fault system by denying general damages to innocent victims of irresponsible drivers.13
13 ... Because a claimant under assigned claims plan is covered as if he had obtained a policy of basic loss insurance, his right to uninsured motorist benefits cannot be distinguished from that of holders of valid insurance policies.

496 Pa. at 219-20, 436 A.2d at 623 (emphasis in original).

Tubner has been recently cited with approval in Modesta v. Southeastern Pennsylvania Transportation Authority, 503 Pa. 437, 469 A.2d 1019 (1983), wherein the Court held that self-insurers are required to maintain uninsured motorist coverage, overruling Johnson v. Yellow Cab Company, 456 Pa. 256, 317 A.2d 245 (1974). The Court also held that an uninsured passenger injured on a SEPTA bus when it was hit by an uninsured motorist was entitled to uninsured motorist benefits. The Court reaffirmed the view expressed in Tubner that victims suffering injuries at the hands of uninsured motorists are provided uninsured motorist benefits, in addition to basic loss benefits, under the No-Fault Act:

Three factors related to the No-Fault Act highlight the unacceptable situation created by this Court’s decision in Johnson v. Yellow Cab: 1) the No-Fault Act has made insurance mandatory for all owners of motor vehicles, see 40 P.S. § 1009.104(a); 2) every policy of insurance issued under the no-fault act must provide for uninsured motorist coverage, see 31 Pa.Code § 66.11; and 3) the No-Fault Act provides for insurance coverage, including uninsured motorist benefits, for every victim of an uninsured motorist, either through a policy of insurance or through the no-fault assigned claims plan, see 40 P.S. § 1009.108(a), 40 P.S. § 1009.204(a), Tubner v. State Farm Automobile Insurance Company, 496 Pa. 215, 436 A.2d 621 (1981).
As a result of these changes brought about by the No-Fault Act and this Court’s decision in Johnson v. Yellow Cab, until today there were two groups of individuals who received no uninsured motorist protection: uninsured motorists who caused accidents, and uninsured occupants of self-insured vehicles. It is reasonable to deny uninsured motorist coverage to the first group, since they have not only chosen not to comply with the mandatory insurance law, but have also caused the accidents which resulted in their injuries; (footnote omitted) however, it makes no sense in terms of any policy of deterrence, retribution or liberal construction of a remedial statute, to deny uninsured motorist coverage to uninsured individuals who have not caused the accidents which resulted in their injuries, simply because they were occupants of self-insured vehicles, (footnote omitted)

503 Pa. at 443, 469 A.2d at 1022-23.

Appellants in each appeal argue that Tubner applies only to carriers processing claims under the Pennsylvania Assigned Claims Plan since such carriers are obligated under § 1009.108(a) of the No-Fault Act to act as if a valid policy had been issued. This argument is an ineffective attempt to narrow the holding of Tubner to only those situations where a victim must look to the assigned claims plan as the source of payment since the victim does not fall within the ambit of sub-paragraphs (1), (2), (3) or (4) of § 1009.204(a) of the No-Fault Act. Clearly, Tubner cannot be read in this manner. “[T]he No-Fault Act provides for insurance coverage, including uninsured motorist benefits, for every victim of an uninsured motorist, either through a policy of insurance or through the no-fault assigned claims plan, see 40 P.S. § 1009.108(a), 40 P.S. § 1009.204(a), Tubner v. State Farm Automobile Insurance Company, 496 Pa. 215, 436 A.2d 621 (1981).” Modesta v. Southeastern Pennsylvania Transportation Authority, supra, 503 Pa. at 443, 469 A.2d at 1022. We perceive no distinction in status between an uninsured victim who must look to the applicable security for coverage of his claim to uninsured motorist benefits under § 1009.204(a)(4) and an uninsured victim who must look to the assigned claims plan under § 1009.204(a)(5). Thus, appellants’ interpretation would frustrate the “Legislature’s intention, expressed in Section 102 of this remedial legislation, to provide maximum feasible restoration to all accident victims in a comprehensive, fair and uniform manner.” Tubner v. State Farm Auto mobile Insurance Company, supra, 496 Pa. at 220, 436 A.2d at 623. For the same reason, we cannot accept Prudential’s disclaimer argument since a claimant’s right to uninsured motorist benefits is not contingent upon the status of the driver of the insured vehicle.

The respective orders from which these appeals have been taken are affirmed.

      . Act of July 19, 1974, P.L. 489, No. 176, §§ 101 et seq., 40 P.S. §§ 1009.101 et seq.

      . Falligan then filed a petition demanding arbitration of his claim, and appellant acquiesced by appointing an arbitrator on its behalf. Falligan, upon agreement with Prudential, withdrew the petition. Arbitration was scheduled for June 15, 1982, but prior to this date, appellant filed a petition to enjoin permanently the arbitration proceeding and to compel the Pennsylvania Assigned Claims Plan to assume handling the uninsured motorist claim of Falligan. The lower court stayed the arbitration proceeding. The parties, including the Plan, submitted a stipulation to the lower court requesting a determination as to whether Falligan was entitled to uninsured motorist benefits and if so, from whom. The lower court found that Michael Nixon had been operating the automobile at the time of the accident without express or implied permission of his mother, thus rendering appellant’s disclaimer of liability under its policy valid. However, the lower court held that despite the validity of the disclaimer, appellant was obliged to extend uninsured motorist coverage to Falligan, based on Tubner v. State Farm Automobile Insurance Company, 496 Pa. 215, 436 A.2d 621 (1981). The lower court denied appellant’s petition to enjoin, and ordered appellant and Falligan to proceed to arbitration.

      . Of course, the status of the driver of the insured vehicle is necessary to prove that the victim was injured by an "uninsured” motorist. See Tubner v. State Farm Mutual Automobile Insurance Company, 280 Pa.Super. 38, 44 n. 8, 421 A.2d 392, 395 n. 8 (1980).

      . In the Prudential appeal, appellant's prayer for relief was also in the nature of declaratory relief. See 42 Pa.C.S.A. § 7531. The lower court properly took jurisdiction of the question of uninsured motorist responsibility to Falligan since this question did not arise under the arbitration clause of subject policy, nor was concerned with the application or construction of the arbitration provision. See Allstate Insurance Company v. Taylor, 434 Pa. 21, 252 A.2d 618 (1969); Webb v. United Services Automobile Association, 227 Pa.Super. 508, 323 A.2d 737 (1974). With regard to the lower court’s order to proceed to arbitration, the lower court did not err. An agreement to arbitrate existed by virtue of the arbitration provision in the subject policy, and the dispute here is arbitrable. We note, however, that Falligan’s claim to uninsured motorist benefits must be proven at arbitration in the same way as if he maintained a policy of automobile liability insurance, i.e. he must prove that he was injured by an “uninsured" motorist. See Note 3, supra. This issue is left to be decided at arbitration. See All State Insurance Company v. Taylor, supra; see National Grange Mutual Insurance Company v. Kuhn, 428 Pa. 179, 236 A.2d 758 (1968).
      In the Keystone appeal, the parties stipulated to the fact that the driver striking Donovan was uninsured. This is a judicial admission and as such cannot be contradicted by the parties at arbitration. See and compare Dale Manufacturing Company v. Bressi, 491 Pa. 493, 421 A.2d 653 (1980).