author: ST. JOHN, J.,

text:
    Commonwealth v. Snow

      C.P. of Mercer County,
    no. 1448 Criminal 2005.

      Robert G. Kochems, assistant district attorney, for Commonwealth.

      Randall T. Hetrick, for defendant.
    March 28, 2006
   ST. JOHN, J.,

CONCLUSIONS OF LAW

Defendant raises two issues in this omnibus hearing following his arrest for DUI when police responded to a domestic dispute. Defendant’s wife gave the police permission to enter their home and question defendant. Defendant, however, told the police to leave when they located him taking a shower. The police ignored defendant and ordered him out of the bathroom, conducted field sobriety tests in his home and arrested him for DUI.

First, defendant challenges the warrantless entry into defendant’s home as well as the police officers’ actions while in defendant’s home as violative of the Fourth Amendment and Article I, Section 8 of the Pennsylvania Constitution. Second, defendant also maintains that the provisions of the DUI statute with which he was charged violated the due process clauses of the United States Constitution as well as the Pennsylvania Constitution by being overly broad and/or void for vagueness.

As a preliminary matter, nowhere are the Fourth Amendment rights (and their Pennsylvania constitutional counterparts) to be more scrupulously respected than in a person’s home. Simply stated, “[a] man’s home is his castle.” See e.g., Minnesota v. Carter, 525 U.S. 83, 94 (1998). (emphasis in original) Or, as the Supreme Court opined more eloquently:

“A man can still control a small part of his environment, his house; he can retreat thence from outsiders, secure in the knowledge that they cannot get at him without disobeying the Constitution. That is still a sizable hunk of liberty — worth protecting from encroachment. A sane, decent, civilized society must provide some such oasis, some shelter from public scrutiny, some insulated enclosure, some enclave, some inviolate place which is a man’s castle.” Silverman v. United States, 365 U.S. 505, 511 n.4 (1961). (citations omitted)

Pennsylvania’s Supreme Court has echoed a similar sentiment: “Upon closing the door of one’s home to the outside world, a person may legitimately expect the highest degree of privacy known to our society.” Commonwealth v. Shaw, 383 A.2d 496, 499 (1978). (citations omitted)

While the Federal Constitution sets minimum standards of constitutional protection for each state to follow, Pennsylvania is free to exceed those constitutional protections when interpreting its own constitution. See Commonwealth v. Edmunds, 586 A.2d 887, 894 (1991). Moreover,

“ ‘As [the Supreme] Court has stated repeatedly in interpreting Article I, Section 8, that provision is meant to embody a strong notion of privacy, carefully safeguarded in this Commonwealth for the past two centuries.’ The [Supreme] Court then concluded that the purpose of the exclusionary rule as developed in Pennsylvania was not solely to deter police conduct, as the United States Supreme Court had interpreted it, but rather was 'unshakably linked to a right of privacy in this Com monwealth.'”'’ Commonwealth v. Matos, 672 A.2d 769, 773 (1996). (citations omitted) (emphasis in original)

It is with this background in mind that the court must examine the legality of the officers’ actions to gain entry into defendant’s home and their subsequent actions with respect to defendant upon entering the home.

I. Officers ’Entry into Defendant’s Home and Their Actions Therein

Generally, a warrant is required for a police officer to enter a person’s home, and the absence of this warrant will make the entry unreasonable and in violation of the Fourth Amendment. See Arizona v. Hicks, 480 U.S. 321, 327 (1987). Such an entry is deemed to be unreasonable absent a well recognized exception to the warrant requirement. Commonwealth v. Cleckley, 738 A.2d 427, 429 (1999). One recognized exception to the warrant requirement is where “voluntary consent [to search] has been obtained, either from the individual whose property is searched, or from a third party who possesses common authority over the premises.” Commonwealth v. O’Donnell, 740 A.2d 198, 206 (1999). The other is a search based upon exigent circumstances. Commonwealth v. Roland, 631 A.2d 269, 270 (1994).

In this case, the police officers did not have a warrant to enter defendant’s home. Therefore, in order for their entry into defendant’s home and their subsequent search in the instant case to be reasonable, the police officers would need to have either valid consent to enter and remain in the house or have exigent circumstances to enter and remain in the house.

A. Consent To Enter, Search, and Remain in Defendant’s House

Defendant here resided with his wife in their marital residence. The police responded to a telephone complaint from defendant’s wife that he had been drinking and they had a verbal argument when she located him. She further complained that she was on her way home, as was defendant, and that she was afraid. Two police officers arrived at the marital residence at about the same time as defendant and his wife, who arrived in separate vehicles. The police officers talked to defendant’s wife in their front yard while defendant went directly into his house. There was no evidence of domestic violence or a pending threat of imminent harm.

In this case, while the police never received defendant’s permission to enter the premises, they did receive permission from defendant’s wife while in the front yard. She jointly occupied and owned defendant’s home and accordingly had every right to allow the police officers to enter defendant’s house. This permission gave the police officers the right to enter defendant’s residence and attempt to speak with defendant. In fact, defendant’s wife opened the front door and led the police into their home. Essentially, this consent authorized the police under the consent exception to the warrant requirement to enter the home and get to defendant’s bathroom door. However, this determination does not end the consent analysis on the facts of this case because the police officers’ subsequent actions and their right to remain in defendant’s home must also be analyzed by what occurred after they reached defendant’s closed bathroom door where he was taking a shower, particularly in light of a very recent United States Supreme Court case.

The law is well settled under the Fourth Amendment, and its Pennsylvania counterpart, that third-party consent by a co-occupant of a home gives law enforcement adequate consent to enter and search a shared premises where the targeted occupant is not present to voice an objection. United States v. Matlock, 415 U.S. 164 (1974); Commonwealth v. Hughes, 836 A.2d 893 (2003). Until March 22, 2006, however, the law was unsettled as to whether police could rely on a third-party consent to enter and search a home where the targeted co-occupant was present and objected to the warrantless entry and search. Police cannot now enter a home under the third-party consent exception where a co-occupant who is present objects to the warrantless entry. Georgia v. Randolph, 126 S.Ct. 1515, 1523 (2006). The facts in Randolph differ from the facts of the case at bar because defendant here was present in the house when the police received consent to enter their home (unbeknownst to defendant) from defendant’s wife who was outside the home, and defendant immediately voiced his objection to their warrantless presence when the police located defendant in his bathroom. Nonetheless, the rationale in Randolph is equally applicable here and the result is the same: the warrantless presence of police in a home must cease when a physically present co-occupant refuses to give police consent to remain in his home after they received unilateral consent from another co-occupant, absent another exception to the Fourth Amendment’s warrant requirement.

In Georgia v. Randolph, the defendant and his wife were both present at their jointly owned home when the police arrived. Id. at 1519. The wife complained about the defendant’s drug use and stated “that there were ‘items of drug evidence’ in the house” to police officers who were at the door of their house without a warrant. Id. The defendant expressly refused the officers permission to enter the premises, but his wife invited them upstairs where they found “a section of a drinking straw with a powdery residue [that the officer] suspected was cocaine.” Id. The police left the house, obtained a search warrant, and found more evidence of drug use. Id. The defendant challenged the initial police entry into his house because of his objections and asked that the evidence found be suppressed. Id.

The Supreme Court noted that when considering reasonableness in Fourth Amendment consent to search cases, great significance is “given to widely shared social expectations. . . .” Id. at 1521. The Randolph court began with this widely held social expectation in assessing the reasonableness of the police entry and search: “it is fair to say a caller standing at the door of shared premises would have no confidence that one occupant’s invitation was a sufficiently good reason to enter when a fellow tenant stood there saying, ‘stay out.’ Without some very good reason, no sensible person would go inside under those conditions.” Id. at 1522-23.

Because of this premise:

“[s]ince the co-tenant wishing to open the door to a third party has no recognized authority in law or social practice to prevail over a present and objecting co-tenant, his disputed invitation, without more, gives a police officer no better claim to reasonableness in entering than the officer would have in the absence of any consent at all.” Id. at 1523.

From this consideration, the court pronounced that: “[w]e therefore hold that a warrantless search of a shared dwelling for evidence over the express refusal of consent by a physically present resident cannot be justified as reasonable as to [the physically present objecting resident] on the basis of consent given to the police by another resident.” Id. at 1526.

This rule was not made without qualifications. The court reaffirmed the exigent circumstances exception to the warrant requirement by stating that: “where the defendant has victimized the third party... the emergency nature of this situation is such that the third-party consent should validate a warrantless search despite defendant’s objections.” Id. (quoting 4 Wayne LaFave, Search and Seizure §8.3 at 161 (4th ed. 2004)). Also, the court did limit its precise holding to this factual scenario, where two co-tenants are present at the door of the premises and one consents to their entry and the other objects. Randolph, 126 S.Ct. at 1527. However, the rationale in Randolph clearly dictates that the consent exception to the Fourth Amendment was not satisfied in the instant case.

First, if a co-tenant at the entrance of a house has a widely shared social expectation that his objection to another party’s entry is reasonable and should be obeyed, then it follows that a bathing co-tenant who raises this same objection, even if it is raised after the initial warrantless entry is likewise reasonable and should be honored. A reasonable guest, even if he or she were already in a house, would certainly not feel any more reason to stay in the house if a co-tenant ordered the guest out while bathing, than if the same co-tenant denied entry to the guest at the front door. It is uncontested here that defendant unequivocally told the police to get the “F ...” out of his house. Findings of fact, March 8, 2006, ¶11. Defendant’s objection from the bathroom in this case should therefore hold the same weight as a person raising this objection at the front door. In effect, defendant repudiated the warrantless presence of the police in his home upon discovering that was previously granted (unbeknownst to him) by his wife, which she was authorized to do and upon which the police properly relied. Thus, police cannot utilize the consent exception to the warrant requirement once it has been revoked and/or repudiated by any occupant who is present during the warrantless presence of the police.

Even if defendant’s objection did not hold the same widely shared social expectation to immediately leave the home as if he were at the front door, then unquestionably there is a widely shared social expectation for a person to be free to take a shower uninterrupted by an unwelcome visitor if the showering co-tenant makes this point clear. In other words, if a co-tenant, while showering, demands to be left alone, no recognized authority in law or social practice exists for another co-tenant to allow unwelcome third parties to order the non-consenting co-tenant out of the bathroom. The warrantless presence of the police became unreasonable at this point for Fourth Amendment purposes. Likewise, absent exigent circumstances, there certainly is no recognized authority for those same unwelcome guests to coerce the showering co-tenant out of the bathroom with threats of serious harm, i.e., using a taser gun and pepper spray, as the police did here. Therefore, defendant’s express directive to the police that they leave his house dictates that the police officers immediately leave the home, or at the very least, leave defendant alone while he was showering, because no recognized authority in law or social practice gives defendant’s wife’s consent the authority to trump defendant’s order for the police officers to leave.

B. Exigent Circumstances To Enter, Search, and Remain in Defendant’s Home

As stated above, Randolph reaffirms the role of exigent circumstances in Fourth Amendment reasonableness analysis. See Georgia v. Randolph, 126 S.Ct. 1515, 1521 (2006). “In determining whether exigent circumstances exist, a number of factors are to be considered.” Commonwealth v. Denshock, 854 A.2d 553, 555 (Pa. Super. 2004). The factors to be considered when determining whether exigent circumstances exist are:

“(1) the gravity of the offense, (2) whether the suspect is reasonably believed to be armed, (3) whether there is above and beyond a clear showing of probable cause, (4) whether there is strong reason to believe that the suspect is within the premises being entered, (5) whether there is a likelihood that the suspect will escape if not swiftly apprehended, (6) whether the entry was peaceable, and (7) the time of the entry, i.e., whether it was made at night. These factors are to be balanced against one another in determining whether the warrantless intrusion was justified....

“Other factors may also be taken into account, such as whether there is hot pursuit of a fleeing felon, a likelihood that evidence will be destroyed if police take the time to obtain a warrant, or a danger to police or other persons inside or outside the dwelling.... Nevertheless, ‘police bear a heavy burden when attempting to demonstrate an urgent need that might justify warrantless searches or arrests. ’ ” Commonwealth v. Roland, 631 A.2d 269, 270-71 (1994). (citations omitted)

First, in order for there to be the possibility of an exigency, there must be the clear showing of probable cause and the defendant’s presence in the house. Certainly, defendant was present in his house when the police entered the residence and began to ask him questions through the closed bathroom door. The police here saw defendant enter his home. Findings of fact, March 8, 2006, ¶4. However, it is doubtful whether the police even had probable cause at this point to believe that defendant committed a crime. The only two possible crimes of which the police had any suspicion were DUI and a possible summary harassment charge for a previous verbal altercation with defendant’s wife. The police had no corroborating evidence to buttress the wife’s complaints on either of these two charges, aside from several complaints of defendant’s wife made to the police before they entered the home. See id. ¶¶2, 3, 4, 5, 12. In fact, the police had reason not to believe the complaints that defendant’s wife made. For instance, defendant gave absolutely no outward indication to the police of his intoxication while entering his home or driving. See id. ¶12. Likewise, nothing in the record demonstrates that defendant acted in a threatening or violent manner while walking past the police and his wife. See id. ¶¶4, 12. However, even assuming that the police had probable cause on either of these crimes, the remaining factors do not weigh in favor of finding exigent circumstances.

Four factors weigh against the finding of exigent circumstances: (1) the gravity of the offenses was at worst a misdemeanor of the first degree; (2) there was no basis to reasonably believe that defendant was armed or that anyone was in danger; (3) there was a low likelihood of defendant escaping if the police attempted to get a warrant for his arrest; and (4) the police were not in hot pursuit of defendant. Three other factors weigh in favor of finding exigent circumstances: (1) the entry into the house was peaceful (id. ¶7); (2) the entry was in the daytime (see id. ¶18); and (3) physical evidence of alcohol impairment could have been eviscerated or altered had the officers gone to get a warrant. Obviously, the results of promptly administered field sobriety tests and/or BAG tests would help the Commonwealth prove a DUI case against defendant, but these factors alone are inadequate to establish exigent circumstances. In sum, these factors are insufficient for the police to bear their heavy burden in establishing the existence of exigent circumstances in this case. See Commonwealth v. Roland, 637 A.2d 269, 270 (1994).

Accordingly, because the police officers’ warrantless search and subsequent seizure of defendant was improper after defendant ordered them out of his house, defendant’s motion to suppress the evidence gained from the warrantless search and seizure must be granted.

II. Constitutionality of the DUI Statute

The issues presented in this portion of defendant’s omnibus motion are identical to those already decided by this court in a consolidated opinion filed in the cases of Commonwealth v. Toth, 746 Criminal 2004; Commonwealth v. Renzo, 752 Criminal 2004; and Commonwealth v. Foulk, 1279 Criminal 2004, wherein the court denied the identical argument made by defendant in those cases that 75 Pa.C.S. §§3802(a)(2), (b), and (c) violated the Due Process Clauses of the Pennsylvania and the United States Constitutions. Therefore, the court hereby incorporates by reference and adopts the reasoning, analysis, and conclusions contained in the opinion filed at those criminal docket numbers on April 25, 2005, a copy of which was previously provided to defendant’s attorney. Furthermore, the Superior Court has upheld the DUI statute over these challenges. Commonwealth v. McCoy, 895 A.2d 18 (Pa. Super. 2006). One case is currently pending before the Pennsylvania Supreme Court on these identical issues: Commonwealth v. Duda, CC no. 200413158 (Allegheny Cty. C. P. Aug. 9, 2005), appeal docketed, 24 WAP 2005 (Pa. July 15, 2005).

Hence this order:

ORDER

And now, March 28,2006, for the reasons set forth in the foregoing conclusions of law, the defendant’s omnibus motion is granted in part and denied in part. Defendant’s omnibus motion in the nature of a motion to suppress evidence is granted. Accordingly, any and all evidence obtained following defendant’s demands from his bathroom to be left alone and for the police to leave his house on August 28,2005, is suppressed. However, defendant’s constitutional challenge to 75 Pa.C.S. §§3802(a)(2), (b), and (c) is denied.

      . The Fourth Amendment of the Federal Constitution states that:
      “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Constitution Amendment IV.
      Article I, Section 8, the Fourth Amendment’s state counterpart, provides:
      “The people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures, and no warrant to search any place or to seize any person or things shall issue without describing them as nearly as may be, nor without probable cause, supported by oath or affirmation subscribed to by the affiant.” Pennsylvania Constitution, Article I, Section 8.

      . “The term ‘search’ as applied to [constitutional analysis of] searches and seizures is an examination of an individual’s house, buildings or person, for the purpose of discovering contraband or some evidence of guilt to be used in the prosecution of a criminal action.” Commonwealth v. Gibson, 638 A.2d 203, 205 (1994). In this case, the police officers’ entry into defendant’s home and their subsequent questioning of defendant through his bathroom door was unquestionably a “search” for the purposes of Fourth Amendment and Article I, Section 8 analysis.

      . As the Randolph court noted, all four Federal Circuit Courts and most state courts which had addressed this legal issue “have concluded that consent remains effective in the face of an express objection.” Georgia v. Randolph, 126 S.Ct. 1515, 1520 n.1 (2006). Legal commentators have also adopted this view. See Sharon E. Abrams, Comment, Third-Party Consent Searches, the Supreme Court, and the Fourth Amendment, 75 J. Crim. L. & Criminology 963 (1984). However, this decision was not uniform through the nation’s state courts. See Silva v. State, 334 So.2d 559 (Fla. 1977). Pennsylvania’s appellate courts have never answered this question.

      . The exigent circumstances exception to the warrant requirement will be discussed infra in this opinion.

      . As the Pennsylvania Supreme Court has repeatedly stated, “the federal constitution establishes certain minimum levels which are ‘equally applicable to the [analogous] state constitutional provision.’ ” Commonwealth v. Edmunds, 586 A.2d 887, 894 (1991). (alterations in original) (citations omitted) Accordingly, because the consent exception to the Fourth Amendment is not satisfied in this case, the consent element of the analogous Pennsylvania constitutional provision, Article I, Section 8, likewise has not been satisfied in this case.

      . The court recognizes that the consent portion of this opinion extends the technical holding of Randolph, which only declares that an objecting co-tenant at the door of a residence makes police intrusion into that residence unreasonable. Georgia v. Randolph, 126 S.Ct. 1515, 1527 (2006). The Randolph court also made clear that police have no affirmative obligation to find a potentially objecting co-tenant in or around the residence and attempt to gain his or her approval to search in addition to the consenting co-tenant. Id. However, nowhere in its opinion does the Supreme Court attempt to address a factual situation where the police are already inside of a house pursuant to a third party’s consent and a co-tenant orders them to leave the premises. Moreover, the court certainly never even approached this question upon the facts of this case, i.e., a co-tenant showering in his own bathroom, who demands to be left alone, and is threatened with serious bodily injury if he does not immediately comply with the police officers’ commands to come out of the bathroom or they will forcibly enter it and use a taser gun and/or pepper spray on him.

      . The Commonwealth in the omnibus hearing did not even mention exigent circumstances as a justification for their entry into defendant’s residence. However, because the police officers did not have valid consent to support the extent of their search and subsequent seizure of defendant, the court will briefly examine whether exigent circumstances would have justified their actions within the home.

      . At the omnibus hearing, there was no evidence as to how long it would take to obtain a warrant. The testimony established, however, the police officers did not fear at all for their safety or for defendant’s, but they were concerned for his wife’s safety. The police primarily wanted to talk to defendant to obtain his version of a verbal dispute he allegedly had earlier that day at a different location with his wife. The police had not observed any erratic driving or any signs of impairment when they saw defendant arrive in his car, exit his vehicle, walk to his house and up a flight of stairs, and enter the front door. However, the court is unable to identify any potential danger to defendant’s wife as a very strong factor because the Commonwealth presented almost no evidence as to the threat of danger to defendant’s wife and whether this threat was reasonable or not. The court has been left without sufficient evidence to properly evaluate this factor. Also, at the time that the police officers spoke to defendant, there was clearly no immediate danger to defendant’s wife since defendant was showering and defendant’s wife was apparently protected by the police, or had already left the scene with their child.


source: Caselaw Access Project

author: FRIEDMAN, J,

license: Public Domain

text:
    Perry v. McCaffery

      C.P. of Allegheny County,
    no. GD 04-1238.

      R. Sean O ’Connell, for plaintiff.

      Robert E. Mielnicki, for defendant.
    June 7, 2006
   FRIEDMAN, J,

INTRODUCTION

This case arose from a collision between two motor vehicles, one operated by plaintiff and one by defendant. During the jury trial held before the undersigned, we granted a partial directed verdict in favor of plaintiff, as to liability only. See trial transcript, p. 100. The issue of whether any of defendant’s injuries were caused by plaintiff’s negligence remained for the jury.

The jury returned a verdict for the defendant. Plaintiff then filed a motion for new trial as to the issue of damages only, which we granted by the order dated December 6,2005. Defendant then filed his motion for clarification/reconsideration, which we denied by order dated January 5, 2006. The instant appeal followed.

ISSUES ON APPEAL

In his statement of matters complained of on appeal, defendant raised three issues, quoted in full below:

“The jury in entering a verdict in this case accepted defendant’s expert’s testimony that plaintiff’s alleged shoulder injury was not related to this accident and the jury was free to accept or reject any expert opinion with regard to whether the additional injuries, including those alleged to plaintiff’s back, neck and ankle, were related to the instant accident and did so in rendering a defense verdict.”

“Even upon entry of a directed verdict as to negligence, the jury was free to determine that the injuries were so diminimus [sic] or insignificant that they did not warrant the award of any damages and the jury did so in rendering a defense verdict.”

“Assuming arguendo a new trial was permissible, the jury should not be permitted to relitigate issues regarding plaintiff’s shoulder injury since at the time of trial the jury accepted the opinion of defendant’s expert that there was no relation between the shoulder injury and the accident and rendered a verdict for defendant, accordingly.”

FACTUAL BACKGROUND

The auto accident in question took place on May 14, 2002. Plaintiff testified that at the time of the accident, he had been stopped at a red light, in the right-hand or “slow” lane, for about 10 to 15 seconds, and that there was another car stopped in front of him. Defendant’s vehicle came up from behind and hit the back of plaintiff’s vehicle. The impact caused plaintiff’s seat to break and he was thrown backwards in the car. His vehicle was pushed into the one in front of him. Defendant testified that just prior to the accident, as he was driving toward the intersection in the right-hand lane, he did not recall whether the light was green or red. He noticed cars slowing in front of him, and he looked into the rearview mirror in preparation for moving into the left-hand or “fast” lane. He noticed that there were cars coming up quickly behind him which prevented him from changing lanes as planned. When he looked in front of him again, the cars in front of him were stopped and he applied the brakes but could not stop in time to avoid hitting plaintiff’s vehicle. (TT pp. 85-95.) These facts are undisputed and resulted in the court’s directing a verdict as to liability, leaving the issue of damages to the jury.

After the accident, plaintiff drove himself away from the scene. (TT pp. 42-44.) The next day, plaintiff sought treatment with the nurse practitioner at his family physician’s office for pain in his neck, back, shoulder and ankle that began the morning after the accident. Then, on May 28, 2002, plaintiff sought treatment with Dr. William Tellin, a chiropractic doctor, for pain in his back, neck and ankle. Subsequently, on September 30, 2003, approximately 16 months after the accident, plaintiff sought treatment with and was diagnosed by Dr. Jeffrey Mulholland as having suffered a shoulder injury, for which surgery was performed.

Dr. William Tellin, the chiropractic doctor with whom plaintiff began treatment on May 28, 2002, testified by deposition. Dr. Tellin indicated that plaintiff came to him for evaluation and management of back, neck, and ankle pain. He testified that he believed that plaintiff had sustained a lumbar sprain caused by the accident in question (Tellin depo. p. 26.), and that all of the care he provided to plaintiff was the result of injuries sustained in the accident. (Tellin depo. p. 30.) Dr. Tellin testified that only the back injury required treatment, but not the neck or ankle pain complained of by plaintiff. The treatment consisted of approximately 18 visits for stretching and moving of the lower spine, ultrasound, and electrical stimulation, along with exercise at home. (Tellin depo. p. 16.) He indicated that plaintiff remained under his care through August 7, 2002, roughly three months after the accident.

Dr. Jeffrey Mulholland, the orthopedic surgeon with whom plaintiff sought treatment, also testified via deposition. Dr. Mulholland testified that plaintiff first met with him regarding left shoulder pain on September 30,2003, approximately 13 months after plaintiff stopped treating with Dr. Tellin. Dr. Mulholland performed arthroscopic surgery on plaintiff’s left shoulder on December 11,2003, to repair a tear in the shoulder cartilage and fraying of the rotator cuff. (Mulholland depo. pp. 9-10.) Dr. Mulholland testified that he “specifically felt that the cartilage tear was related to his accident.” (Mulholland depo p. 10.)

The evidence regarding plaintiff’s pre-existing physical complaints and their relation to the accident revealed the following. Plaintiff had had three prior back surgeries: a spinal fusion in 1972, a discectomy in 1996, and another discectomy in 2000. (TT p. 39.) Also prior to the accident, plaintiff had experienced pain in his right shoulder, which he attributed to playing tennis. (TT p. 56.) After the accident, plaintiff had arthroscopic surgery on his left shoulder on December 11, 2003.

The defense had an expert witness, Dr. Thomas S. Muzzonigro, a physician who practices general orthopedic medicine and surgery, and who also testified by deposition. He performed an examination of plaintiff on behalf of defendant on March 11, 2005. He testified that plaintiff had “preexisting degenerative changes [to the lower back] that took years to develop and were secondary to the multiple injuries and surgeries prior to the May 14[, 2002] accident.” (Muzzonigro depo. p. 15.) However, he concurred with the chiropractor’s diagnosis that plaintiff had sustained a lower back sprain in the accident. (Muzzonigro depo. p. 18.) Dr. Muzzonigro expressed no opinion critical of the extent of treatment provided by Dr. Tellin for the undisputed injuries. Dr. Muzzonigro stated that by the time he examined plaintiff in March 2005, he believed that any lower back pain still suffered by plaintiff was caused by preexisting conditions and not by injuries suffered in the accident. (Muzzonigro depo. p. 43.) He also opined that plaintiff’s shoulder injury was not caused by the accident. (Muzzonigro depo. p. 50.) He based this opinion on plaintiff’s history of “problems in both shoulders before the injury and that there was no documentation of an injury to the shoulder at the time of the car accident or for 11 months after the car accident, so I didn’t feel that his treatment by Dr. Mulholland, which I believe was somewhere on the order of one year and a couple months after the accident, were related to that injury date.” (Id.)

DISCUSSION

In Mano v. Madden, 738 A.2d 493 (Pa. Super. 1999), the Superior Court stated that “[i]t is impermissible for a jury, in a personal injury case, to disregard the uncontroverted testimony from the experts for both parties that the plaintiff suffered some injury as a result of the accident in question.” 738 A.2d at 497. (emphasis added) In Smith v. Putter, 832 A.2d 1094 (Pa. Super. 2003), the Superior Court stated that “[wjhere the defense’s medical expert concedes some injury as a result of the accident, the jury’s finding of no causation is against the weight of the evidence.” 832 A.2d at 1098.

Here, the defendant’s own expert, Dr. Muzzonigro, testified that the plaintiff had sustained a lower back sprain as a result of the accident. (Muzzonigro depo. p. 18.) The jury therefore was not free to find, as it did, that none of plaintiff’s injuries resulted from defendant’s negligence. Furthermore, the undisputed injuries are not de minimis. They required a good deal of time and expense to treat and there was no evidence from which a jury could conclude that the treatment by Dr. Tellin was unnecessary. We properly granted a new trial so that the issue of the extent of the harm from the accident can be properly decided.

In addition, defendant’s contention that the zero verdict means that the jury rejected the shoulder injury is without merit. All that verdict means is that the jury misunderstood or ignored the court’s instructions on the law. A new trial on all damages claimed, including the shoulder injury, is the only just remedy for that.


author: RAU, J,

text:
    Blackwell v. Eskin

      C.P. of Philadelphia County,
    November Term 2003,
    no. 02098.

      David Adam Yanoffand James E. Beasley Jr., for plaintiff.

      Amy B. Ginensky, Robert C. Heim and Kristin Hynd Jones, for defendants.
    March 14, 2006
   RAU, J,

I. INTRODUCTION

On March 8,2003, Temple University suspended plaintiff Nathaniel Blackwell, a Temple assistant coach and former celebrity basketball player, for “violating team rules” after he missed a game. Officer Charles Campbell, a Temple police officer who had been assigned to the men’s basketball team, had over a course of months reported to Mr. Eskin that there was more to the Mr. Blackwell story. According to Officer Campbell, Mr. Blackwell had an addiction to illegal drugs, Temple knew about Mr. Blackwell’s drug problem and Mr. Blackwell had been involved in a theft problem in the Temple locker room the year before (theft statement). On March 9, 2003, Mr. Eskin, believing that it was a matter of public concern that an assistant coach working with college athletes was using illegal drugs, broadcast a report on WCAU-TV that revealed the information he received from Officer Campbell.

Mr. Blackwell admits that the majority of the information in Mr. Eskin’s broadcast was true, including that he was abusing cocaine, and he does not challenge any of the statements about drug use. (Pl.’s mem. of law in opp’n to def.’s mot. for summ. j. at 3.) Nevertheless, Mr. Blackwell filed this suit alleging that Mr. Eskin’s theft statement defamed him, placed him in a false light and interfered with his prospective contractual relations. Mr. Blackwell, a public figure, must demonstrate by clear and convincing evidence that Mr. Eskin made the statement with “actual malice” to be liable for defamation and false light invasion of privacy. See New York Times v. Sullivan, 376 U.S. 254 (1964); Tucker v. Philadelphia Daily News, 577 Pa. 598, 848 A.2d 113 (2004). Mr. Blackwell failed to produce evidence showing that Mr. Eskin knew the report from the Temple police officer about Mr. Blackwell’s drug use leading to his being involved in locker room thefts was false or that it was probably false. New York Times, 376 U.S. 254.

This court properly granted summary judgment on the defamation and false light claims in accord with constitutional decisions by the United States Supreme Court and the Pennsylvania courts applying the actual malice requirement. Likewise, plaintiff failed to produce evidence of a contract that was compromised by defendant’s broadcast or any actual damages, making summary judgment appropriate on that claim.

II. FACTUAL BACKGROUND

A. Plaintiff Blackwell Is a Public Figure

PlaintifFNathaniel Blackwell is a celebrity. Mr. Blackwell was a basketball star at Temple University in Philadelphia in the 1980s, leading Temple’s team in four NCAA tournaments, three Atlantic Ten Conference titles and two Atlantic Ten Conference tournament championships. (Def.’s exhibits to their mot. for summ. j. at exhibit A, “Blackwell resume.”) While leading his team to success at the national college level, Mr. Blackwell earned numerous individual awards including being inducted into the Big Five Hall of Fame and named Atlantic Ten Conference Player of the Year. Id. Mr. Blackwell played in the NBA for two years, first with the San Antonio Spurs and then with the Golden State Warriors. Id.

In the early 1990s, Mr. Blackwell held several coaching positions at Temple and Coppin State College in Baltimore. Id. In 1996, Mr. Blackwell returned as an assistant coach to the Temple University Men’s Basketball Team. Mr. Blackwell was promoted in 1999 to first assistant underneath Coach John Chaney. {Id.; def.’s exhibits to their mot. for summ. i. at Blackwell dep. tr. at 462.)

Mr. Blackwell’s duties as first assistant basketball coach included working closely with players at practices and games, monitoring players’ academic performance and ensuring compliance with NCAA rules. (Def.’s exhibits to their mot. for summ. j. at Blackwell dep. tr. at 462-63; id. at exhibit B, “First Assistant job description.”) Mr. Blackwell’s responsibilities involved making public appearances on behalf of Coach Chaney and the team to the media and at fundraisers. (Def.’s exhibits to their mot. for summ. j. at Blackwell dep. tr. at 460-64; id. Chaney dep. tr. at 45-47.) Mr. Blackwell has conceded that “as a collegiate and professional basketball player, and later as a collegiate assistant coach, he appeared on [television and radio] broadcasts, too many to recall.” (Def.’s exhibits to their mot. for summ. j. at exhibit C, “pl.’s ans. to interrogs.” at ¶40.) Plaintiff has not disputed that he is a public figure and admits that he is viewed as a “celebrity.” (Pl.’s mem. of law in supp. of his opp’n to def.’s mot. for summ. j. at 22; def.’s exhibits to their mot. for summ. j. at Blackwell dep. tr. at 344.)

B. Plaintiff Blackwell Has a History of Illegal Drug Use

Mr. Blackwell first tried cocaine at age 17. (Def.’s exhibits to their mot. for summ. j. at Blackwell dep. tr. at 215.) He used it sporadically while in the NBA, and became addicted in 1996 while coaching at Temple. (Id. at 222-26.) During 2001-2002, Mr. Blackwell admits that he was using cocaine daily, spending up to $60 a day on the illegal drug. (Id. at 65, 134-35, 234.) Mr. Blackwell testified that he became a “binge” cocaine user during this period, staying high for a couple of days with some binges costing up to $150. (Id. at 85-86,91-92,165,242-44.) He would check into a hotel during some of these binges. (Id. at 91-92, 164-65, 242-45.) In 2002, in the middle of the Temple basketball season, Mr. Blackwell checked into a rehabilitation facility for two weeks but told Coach Chaney he needed to take the absence to deal with family problems. (Id. at 66,257-60.) Mr. Blackwell’s illegal use of cocaine continued into 2003. (Id. at 357.)

C. Temple Police Officer Discloses Plaintiff Blackwell’s Drug Problem to Defendant Eskin

Officer Charles Campbell was a Temple Police Officer on Temple’s police force for nearly 30 years and was assigned for several years, including 2002, to Temple University’s men’s basketball team. (Def.’s exhibits to their mot. for summ. j. at Bergman dep. tr. at 25-27; def.’s exhibits to their mot. for summ. j. at exhibit E, “Campbell aff.” at ¶2.) His duties included guarding Coach Chaney and the bench during games, and escorting Coach Chaney to and from the stadium and the locker room when there were games. (Def. ’s exhibits to their mot. for summ. j. at Bergman dep. tr. at 31-32.) As a Temple University officer, his duties also included patrolling the campus and reporting crimes to the investigative unit, including theft. Officer Campbell had access to the results of those investigations. (Id. at 26-29.) There has been no evidence presented to suggest that Eskin knew of any reason to question Officer Campbell’s credibility or reliability.

During the period of Officer Campbell’s assignment to the Temple men’s basketball team, he learned of Mr. Blackwell’s drug problem. (Def.’s exhibits to their mot. for summ. j. at exhibit E, “Campbell aff.” at ¶¶1 and 2.) Officer Campbell also came to know local sportscaster Howard Eskin. (Id. at ¶4.) Officer Campbell informed Mr. Eskin about Mr. Blackwell’s drug problem and reported that “the problem had got so bad” that Mr. Blackwell had been involved in a theft in the locker room the year before. (Def.’s exhibits to their mot. for summ. j. at exhibit E, “Campbell aff.” at ¶4.) Officer Campbell stated that he told Mr. Eskin this because he believed that Mr. Blackwell’s use of illegal drugs made him a poor role model for the college students and he was concerned that Temple was not addressing Mr. Blackwell’s drug problem. (Def.’s exhibits to their mot. for summ. j. at exhibit E, Campbell aff. at ¶¶4 and 5.) Officer Campbell hoped that Mr. Eskin would disclose the information publicly. (Id. at ¶¶4 and 5.)

Mr. Eskin testified that he had between five and 10 conversations with Officer Campbell about Mr. Blackwell’s drug problem. Mr. Eskin believed Officer Campbell to be a reliable source as a Temple police officer and stated that he “always believed Charlie Campbell to be trustworthy and honest in every conversation that [Eskin] had with him.” (Def.’s exhibits to their mot. for summ. j. at Eskin dep. tr. at 35, 57.) With respect to the alleged theft, Mr. Eskin said that “it was clear that he [Officer Campbell] had knowledge of what was going on.” (Id. at 57-58.) Mr. Eskin testified that he believed that Mr. Blackwell’s drug abuse led to the theft because many drug abusers need money to support their habit. (Id. at 49-50.)

In addition, Mr. Eskin spoke to Temple Athletic Director Bill Bradshaw in September of 2002 about Mr. Blackwell’s drug problem. (Def.’s exhibits to their mot. for summ. j. at Eskin dep. tr. at 42-45.) Mr. Bradshaw testified that he told Mr. Eskin that he had just taken the position, the conversation was in a public place and he did not respond to Mr. Eskin’s comment about Mr. Blackwell’s drug use. However, Mr. Bradshaw did not tell Mr. Eskin that the drag allegations were false. (Def. ’s exhibits to their mot. for summ. j. at Bradshaw dep. tr. at 12-17.)

D. Defendant Eskin Broadcasts Information He Learned From Officer Campbell

On Thursday, March 6, 2003, Mr. Blackwell began a two- to three-day cocaine binge. (Def.’s exhibits to their mot. for summ. j. at Blackwell dep. tr. at 357.) During that period he missed the Temple Men’s basketball team’s game against LaSalle and the team’s weekend games. (Def.’s exhibits to their mot. for summ. j. at Blackwell dep. tr. at 372-73.) On Saturday, March 8,2003, Temple issued a press release announcing that it had suspended Mr. Blackwell indefinitely for violating team rules but made no mention that its suspension had anything to do with Mr. Blackwell’s use of illegal drugs. (Def.’s exhibits to their mot. for summ. j. at exhibit F, “press release.”) The suspension was reported by the Philadelphia Inquirer, a regional newspaper, on March 9, 2003. The media began to try to contact Mr. Blackwell after learning of his suspension, but his wife, Loretta Blackwell, received the calls because Mr. Blackwell did not return from his cocaine binge until early Sunday, March 9,2003. (Def.’s exhibits to their mot. for summ. j. at exhibit G, “Philadelphia Inquirer article”; Def.’s exhibits to their mot. for summ. j. at Blackwell dep. tr. at 503-505.)

After Temple’s press release and the Philadelphia Inquirer’s report on Mr. Blackwell’s suspension, Mr. Eskin was concerned that in suspending Mr. Blackwell, Temple University was still not telling the public the full story. (Def.’s exhibits to their mot. for summ. j. at Eskin dep. tr. at 35, 46, 79.) Mr. Eskin believed that Mr. Blackwell’s role as an assistant coach for college basketball players and his simultaneous use of illegal drugs and allegedly being involved in a “theft problem” in the locker room was a matter of public concern. (Id. at 79-80.) Consequently, relying upon Officer Campbell’s reports about Mr. Blackwell, Mr. Eskin reported the following on his sports show, “Eskin Inside,” which aired on WCAU-TV, Channel 10, on Sunday, March 9, 2003, at 11:35 p.m.:

“My next item is one that is really hard to tell. It involves a former local hero who is in real trouble. He currently is the assistant basketball coach at Temple. Nate Blackwell had some terrific playing days at Temple and at one time thought to be the successor to John Chaney, but now he is nowhere ... literally.

“Blackwell was suspended on Saturday for violating team rules, but it is far worse than that. Blackwell has missed work most of the week, was nowhere to be found on Thursday night for the Owls game with LaSalle and, as of this morning, the people at Temple still don’t know where Nate Blackwell is. And the problem — I’m told Nate Blackwell has a substance abuse problem. The sad part of this story is that Nate Blackwell has had a substance abuse problem for at least a year and Temple has been covering this up.

“Last year Temple told us Blackwell missed the Louisville game to take care of his kid. That was a cover-up. He went to rehab. The head coach John Chaney has saved Blackwell many times — going to the University president to save his job. But things got so bad Blackwell was involved in a theft problem last year in the team’s locker room. Now these problems are not new. Temple has been covering up for Blackwell for a while and now it’s likely that Nate Blackwell is done at Temple and it is really sad because if he did the right things he probably would have been the successor to John Chaney.” (Pl.’s civil action compl. at ¶30 (allegedly defamatory statement in bold); def. ’s exhibits to their mot. for summ. j. at Eskin dep. tr. at 17-19.)

To this day, Mr. Eskin believes that all of the statements he reported about Mr. Blackwell were true. (Def.’s exhibits to their mot. for summ. j. at Eskin dep. tr. at 14-15.) Mr. Blackwell readily admits to his long-term cocaine addiction and to his missing practices and games because of the drug problem, but he disputes one statement in the Eskin broadcast: the statement alleging that he was involved in a “theft problem ... in the team’s locker room.” (Pl.’s mem. of law in opp’n to def.’s mot. for summ. j. at exhibit B, Blackwell dep. tr. at 539-40.)

E. Blackwell Resigns From Temple

Sometime in March or April 2003, Mr. Blackwell resigned from his Temple coaching position and signed an agreement not to sue Temple University. (Def.’s mem. of law in supp. of their mot. for summ. j. at 13.) Using illegal drugs violates Temple’s and the NCAA’s rules. (Def.’s exhibits to their mot. for summ. j. at Blackwell dep. tr. at 262, 501; def.’s reply to pl.’s mem. of law in opp’n to def.’s mot. for summ. j. at exhibit 4, Englert dep. tr. at 26-28.) Richard Englert, Temple’s deputy provost and dean, said that the school would not hire a cocaine addict to coach student athletes. (Def.’s reply to pl.’s mem. of law in opp’n to def.’s mot. for summ. j. at exhibit 4, Englert dep. tr. at 9,27-29.) Since his resignation from Temple, Mr. Blackwell has continued to struggle with cocaine addiction and has been in and out of drug rehabilitation. (Def.’s exhibits to their mot. for summ. j. at Blackwell dep. tr. at 70-72, 415-16; def.’s mem. of law in supp. of their mot. for summ. j. at 13.) As recently as March 2005, Mr. Blackwell’s binge use of cocaine led him to check into a drug rehabilitation fácility. (Def. ’s exhibits to their mot. for summ. j. at Blackwell dep. tr. at 415-16.) Mr. Blackwell briefly held a part-time position with the U.S. Postal Service. (Def.’s exhibits to their mot. for summ. j. at Blackwell dep. tr. at 444; def.’s mem. of law in supp. of their mot. for summ. j. at 13.) Mr. Blackwell provided no evidence that he has applied for any other coaching positions, including a position at Temple, after he resigned. (Def.’s exhibits to their mot. for summ. j. at Blackwell dep. tr. at 446,450.) Mr. Blackwell provided no evidence of a prospective employer who would be willing to hire him notwithstanding his current cocaine addiction but who would not hire him because of the theft statement.

III. PROCEDURAL HISTORY

In November 2003, Mr. Blackwell filed this complaint against Howard Eskin, WCAU-TV d/b/a 10 NBC, and a number of other NBC-related entities, alleging defamation, false light invasion of privacy, and interference with prospective economic advantage and seeking punitive damages. Out of the entire broadcast, Mr. Blackwell challenges only the statement that he was involved in locker room “theft problems.” Mr. Blackwell did not challenge any of the disclosures of his illegal drug use and instead has admitted his long-term struggles with cocaine addiction. (Pl.’s mem. of law in opp’n to def.’s mot. for summ. j. at 3; def.’s exhibits to their mot. for summ. j. at Blackwell dep. tr. at 222-26, 357.) After discovery was complete, defendants filed a motion for summary judgment as to all counts of plaintiff Blackwell’s complaint. This court granted defendant’s motion on defamation, false light invasion of privacy, and interference with prospective economic advantage claims since plaintiff failed to produce sufficient evidence of his claims. Plaintiff timely appealed.

IV. LEGAL DISCUSSION

Under Pennsylvania Rule of Civil Procedure 1035.2(2), a defendant is entitled to summary judgment if:

“After the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury.” Pa.R.C.P. 1035.2(2).

This court granted summary judgment because plaintiff Blackwell failed to produce evidence to sustain claims for defamation, false light invasion of privacy and interference with prospective contractual relations.

A. Summary Judgment Is Particularly Appropriate in Claims Involving First Amendment Interests When Insufficient Evidence of Actual Malice Is Presented

Free speech and press are axiomatic to true democracy. So crucial are they to the structure of American government that our first constitutional amendment strictly protects them from being stifled even at the risk that some publications may be inaccurate. The First Amendment guarantees of free speech and press form the necessary backdrop upon which every defamation claim must be examined:

“[T]he stake of the people in public business and the conduct of public officials is so great that neither the defense of truth nor the standard of ordinary care would protect against self-censorship and thus adequately implement First Amendment policies. Neither lies nor false communications serve the ends of the First Amendment and no one suggests their desirability or further proliferation. But to insure the ascertainment and publication of the truth about public affairs, it is essential that the First Amendment protect some erroneous publications as well as the true ones.” St. Amant v. Thompson, 390 U.S. 727, 731-32(1968).

The Supreme Court warned that “erroneous statement is inevitable in free debate,” and “it must be protected if the freedoms of expression are to have the breathing space that they need to survive.” New York Times v. Sullivan, 376 U.S. 254, 271-72 (1964) (Brennan, J.). (internal citations and quotations omitted)

Accordingly, the First Amendment protections require that a public figure who brings a defamation action must prove by clear and convincing evidence that the defendant made the statement with actual malice. New York Times v. Sullivan, 376 U.S. 254, 279-80 (1964) (public official); Milkovich v. Lorain Journal Co., 497 U.S. 1, 14 (1990) (public figure); St. Amant v. Thompson, 390 U.S. 727, 731 (1968); Tucker v. Philadelphia Daily News, 577 Pa. 598, 624, 848 A.2d 113, 130 (2004) (public figure).

In first articulating the actual malice standard in New York Times v. Sullivan, the Supreme Court outlined the significance of free speech and press to the very fabric of our nation and culture:

“The constitutional safeguard, we have said, was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people. The maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people and that changes may be obtained by lawful means, an opportunity essential to the security of the Republic, is a fundamental principle of our constitutional system. It is a prized American privilege to speak one’s mind, although not always with perfect good taste, on all public institutions, and this opportunity is to be afforded for vigorous advocacy no less than abstract discussion. The First Amendment, said Judge Learned Hand, ‘presupposes that right conclusions are more likely to be gathered out of a multitude of tongues, than through any kind of authoritative selection. To many this is, and always will be, folly; but we have staked upon it our all.’” 376 U.S. 254, 269-70 (1964). (internal quotes and citations omitted)

The actual malice standard reflects “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks ...Id. at 270.

The question of whether a plaintiff has produced clear and convincing evidence of actual malice is initially a question of law:

“The question whether the evidence in the record in a defamation case is of the convincing clarity required to strip the utterance of First Amendment protection is not merely a question for the trier of fact. Judges, as expositors of the Constitution, must independently decide whether the evidence in the record is sufficient to cross the constitutional threshold that bars the entry of any judgment that is not supported by clear and convincing proof of‘actual malice.’ ” Curran, 376 Pa. Super. 508, 517, 546 A.2d 639, 644 (1988) (citing Bose Corp. v. Consumers Union, 466 U.S. 485, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984)). Given that free speech and press might be hindered by people fighting meritless lawsuits and open public debate consequently self-censored, summary judgment is encouraged when a plaintiff has failed to provide the requisite evidence of defamation. First Lehigh Bank v. Cowen, 700 A.2d 498, 502 (Pa. Super. 1997).

B. Mr. BlacJcwell Did Not Produce Any Evidence That Mr. Eskin Acted With Actual Malice Warranting Summary Judgment on the Defamation Claim

There are elements to plaintiff’s defamation claim that the parties in this case dispute, however, this court granted defendants’ summary judgment motion because Mr. Blackwell failed to produce any evidence, much less clear and convincing evidence, that Mr. Eskin made the theft statement with actual malice.

Mr. Blackwell admits he is a public figure. (Pl.’s mem. of law in opp’n to def.’s mot. for summ. j. at 22.) A celebrity college coach’s use of illegal drugs when he is charged with guiding student-athletes’ participation in national collegiate competition, his alleged theft from his student players and the possibility that the University might be covering these problems up, invoked the constitutional requirement of proving the speaker acted with actual malice. New York Times v. Sullivan, 376 U.S. 254 (1964). The regional media paid considerable attention to Mr. Blackwell’s unexplained absence from the premier team’s games and his suspension for “violating team rules.” However, there were unanswered questions about this public figure and this issue of public concern. Plaintiff does not dispute that he is required to demonstrate clear and convincing evidence that Mr. Eskin acted with actual malice.

The United States Supreme Court has placed “severe restrictions on a public figure-plaintiff’s rights to recover in defamation.” Norton v. Glenn, 580 Pa. 212, 860 A.2d 48, 54 (2004). It has defined actual malice as a statement made “with knowledge that it was false or with reckless disregard of whether it was false or not.” New York Times v. Sullivan, 376 U.S. 254, 279-80 (1964). A statement is made with reckless disregard if the speaker makes it with a “high degree of awareness of... [its] probable falsity.” Garrison v. Louisiana, 379 U.S. 64, 74 (1964). Actual malice is a fault standard, not a negligence standard, predicated on the need to protect public discourse from being muffled. New York Times, 376 U.S. at 288; Tucker v. Philadelphia Daily News, 577 Pa. 598, 625, 848 A.2d 113, 130 (2004). Furthermore, the defendant’s motivation for making an alleged defamatory statement will not supplant the need to prove actual malice. “[T]he actual malice standard is not satisfied merely through a showing of ill will or ‘malice’ in the ordinary sense of the term .. . [nor] can the fact that the defendant published the defamatory material suffice to prove actual malice.” Harte-Hanks Communications Inc. v. Connaughton, 491 U.S. 657, 667 (1989).

Examining the undisputed facts is necessary to evaluate whether Mr. Eskin acted with actual malice. As a sworn Temple police officer assigned to guard the coach and players, Officer Campbell had regular contact with the players and their coaches. Officer Campbell repeatedly mentioned Mr. Blackwell’s drug abuse to Mr. Eskin. Officer Campbell’s job responsibilities involved investigating or reporting crimes including theft. (Def.’s exhibits to their mot. for summ. j. at Bergman dep. tr. at 26-27.) Thus, when Officer Campbell told Mr. Eskin that Mr. Blackwell had been involved in a theft problem in the locker room, it was logical for Mr. Eskin to assume this information was learned in the course of Officer Campbell’s duties. (Def. ’s exhibits to their mot. for summ. j. at exhibit E, “Officer Campbell affidavit” at ¶4.)

Other events seemed to corroborate what Officer Campbell told Mr. Eskin. When Mr. Eskin raised the drag problem issue with the Athletic Director, Bill Bradshaw, he was evasive and refused to answer but did not deny that Mr. Blackwell had a drug problem. (Def.’s exhibits totheirmot. for summ.j. atEskindep.tr. at 42-43; def.’s exhibits to their mot. for summ. j. at Bradshaw dep. tr. 12-14,16-17.) In the days preceding Mr. Eskin’s broadcast, Mr. Blackwell inexplicably missed games. Temple University issued a press release stating that Mr. Blackwell was suspended for violating team rules. Temple seemed to be withholding some information, such as what “team rules” Mr. Blackwell had violated that would warrant publicly announcing an indefinite suspension. Mr. Blackwell was not even available to the press to comment on his suspension from the team.

Mr. Eskin’s broadcast followed these events, which were consistent with, and certainly did not contradict, the information he received from Officer Campbell. There has been no evidence that Mr. Eskin knew, or even should have known, that Officer Campbell was unreliable. Similarly, there has been no evidence that Mr. Eskin had any vendetta against Mr. Blackwell.

Indeed, Mr. Blackwell concedes that the majority of Mr. Eskin’s March 9, 2003 broadcast that was based on Officer Campbell’s information was true. Mr. Blackwell admits that during the period of Mr. Eskin’s broadcast, he was addicted to cocaine, using up to $60 in cocaine daily and regularly going on $150 cocaine binges while earning an associate coach’s salary. Mr. Blackwell admits that his behavior was so out of control that he would miss games and stay in a hotel room for days at a time when he binged on cocaine. Mr. Blackwell also admits that his 2002 absence from work occurred because he entered a drug rehabilitation program. Mr. Blackwell concedes all of the criminal conduct involving buying and using drugs that Officer Campbell reported to Mr. Eskin, but alleges that Mr. Eskin acted with actual malice when he broadcast this statement: “But things got so bad Blackwell was involved in a theft problem last year in the team’s locker room.” (Pl.’s civil action compl. at ¶30.)

Plaintiff urges that any discussion of Mr. Blackwell’s illegal drug use in the context of this summary judgment motion “is a desperate attempt to misguide” or “misdirect the focus” of the case. (Pl.’s mem. of law in opp’n to def.’s mot. for summ. j. at 4.) Plaintiff tries to separate the false theft allegation from the broader context of plaintiff’s serious addiction to cocaine. A proper analysis of whether Mr. Eskin acted with actual malice requires the entire context of the situation to be analyzed. The Supreme Court has emphasized that in “determining whether the constitutional standard has been satisfied ... the court must consider the factual record in full.” Harte-Hanks Communications Inc. v. Connaughton, 491 U.S. 657, 688 (1989).

The report that Mr. Blackwell was allegedly involved in theft did not occur in isolation. The report was part of a larger story, that Mr. Blackwell was using cocaine to such a degree that he missed games and received an indefinite suspension from his job. Mr. Eskin testified that after hearing Officer Campbell’s report of theft, he believed that Mr. Blackwell’s illegal drug use had led to theft, since many drug users need money to support their expensive habit. (Pl.’s mem. of law in opp’n to def.’s mot. for summ. j. at exhibit E, Eskin dep. tr. at 49-50.) Certainly it does not strain credulity to think that an assistant coach who engages in an expensive and dangerous illegal drug habit and who was so out of control that he was missing public games and risking his job, might also engage in other illegal behavior like theft to support his cocaine habit. The criminal courts abound with cases of individuals who have taken this unfortunate path. The issue is not whether the statement was true but whether Mr. Eskin knew that the statement was false or probably false.

Plaintiff did not produce a single piece of evidence showing that Mr. Eskin knew the theft statement was false or that it was probably false. There has been no evidence that Mr. Eskin was aware that Officer Campbell’s report might be inaccurate. To the contrary, Mr. Eskin’s knowledge was that as a Temple police officer assigned to the team, Officer Campbell would be in a position to know the truth about thefts from the team locker room. Significantly, Mr. Blackwell admits the vast majority of what Officer Campbell reported to Mr. Eskin.

The United States Supreme Court has emphasized that the actual malice requirement is a subjective standard, not an objective standard. Harte-Hanks Communications Inc. v. Connaughton, 491 U.S. 657, 688 (1989). Thus, whether Mr. Eskin actually knew the broadcast was false or probably false is the issue to be addressed, not what some other person knew or what Mr. Eskin should have known. Id. In St. Amant v. Thompson, the Supreme Court described the necessary evidence that a public figure defamation plaintiff must produce to prevail:

“[Ejvidence of either deliberate falsification or reckless publication, despite the publisher’s awareness of probable falsity, was essential to recovery by public officials in defamation actions. These cases 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 doubts as to the truth of his publication. Publishing with such doubts shows reckless disregard for truth or falsity and demonstrates actual malice.” 390 U.S. 727, 731.

Absent any direct evidence that Mr. Eskin knew the theft statement was false, plaintiff attacks Mr. Eskin’s source. Ironically in this defamation case, plaintiff’s counsel characterizes Officer Campbell as a “disturbed, suspended security guard.” To the contrary, at the time of Mr. Eskin’s reliance on Officer Campbell, he was a sworn Temple police officer who was on leave for his wrist injury, and who Temple approved to return on full duty shortly after the broadcast. Temple’s placing Officer Campbell in a position of significant responsibility as a police officer entrusted with a weapon demonstrates that Temple did not view him as impaired.

Moreover, plaintiff has failed to provide any evidence, circumstantial or otherwise, to show that Mr. Eskin knew of Officer Campbell’s prior suspension or believed his reliability and credibility were at all impaired. Plaintiff asserts that, “Eskin had to have obvious reasons to doubt his ‘source’s’ veracity and the accuracy of his allegation ..and then describes a litany of personal events that occurred in Officer Campbell’s life that allegedly make him an unreliable source. (Pl.’s mem. of law in opposition to def. ’s mot. for summ. j. at 27, footnote 13.) (boldface and italics omitted from original) Plaintiff’s emphasis on the phrase “had to” highlights the deficiency of his evidence. “Had to” is equivalent to saying “should have,” which is an objective analysis using negligence principles. Constitutional protections require the focus to be on what Mr. Eskin subjectively knew rather than on an objective analysis of what he should have known. Harte-Hanks Communications Inc., 491 U.S. at 688.

Mr. Blackwell presented no evidence showing that Mr. Eskin actually had any reasons to doubt Officer Campbell. Plaintiff did not show that anyone from Temple (or anywhere else) told Mr. Eskin not to trust Officer Campbell, or gave Mr. Eskin information that would lead him to distrust Officer Campbell. Instead, the only evidence is Mr. Eskin’s statement that he considered Officer Campbell trustworthy, which was bolstered by his direct observations of Officer Campbell in his position as a Temple police officer assigned to the Temple men’s basketball team.

Lacking any direct evidence of actual malice, the thrust of plaintiff’s argument is that Mr. Eskin was negligent by failing to adequately investigate the truth of the theft statement and for trusting a Temple police officer as his source. Both the United States Supreme Court and the Pennsylvania courts have consistently held that mere negligence or recklessness by the defendant reporter in investigating a story does not show actual malice.

“Mere negligence or carelessness is not evidence of actual malice. A defendant’s failure to verify his facts may constitute negligence, but does not rise to the level of actual malice. That is, while it arguably may be negligent not to check independently the veracity of information before publication, this fault does not rise to the level of actual malice.” Reiter v. Manna, 436 Pa. Super. 192, 197, 647 A.2d 562, 565 (1994) (internal citations and quotations omitted), quoting Oweida v. Tribune-Review Publishing Company, 410 Pa. Super. 112, 135-36, 599 A.2d 230, 242-43 (1991), alloc. denied, 529 Pa. 670, 605 A.2d 334 (1992). The U.S. Supreme Court has expressly rejected an actual malice standard predicated upon “a showing of highly unreasonable conduct constituting an extreme departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers.” Harte-Hanks Communications Inc. v. Connaughton, 491 U.S. 657, 666 (1989). (internal quotations and citations omitted)

Plaintiff relies on the following passage from St. Amant v. Thompson, in support of his claim that Mr. Eskin’s reliance on Officer Campbell amounted to actual malice:

“The finder of fact must determine whether the publication was indeed made in good faith. Professions of good faith will be unlikely to prove persuasive, for example, where a story is fabricated by the defendant, is the product of his imagination, or is based wholly on an unverified anonymous phone call. Nor will they be likely to prevail when the publisher’s allegations are so inherently improbable that only a reckless man would put them into circulation. Likewise, recklessness may be found where there are obvious reasons to doubt the veracity of the informant or the accuracy of his reports.” 390 U.S. at 732.

This passage actually illustrates why this court was compelled to grant summary judgment. No evidence was presented that Mr. Eskin fabricated the story, that an alleged theft in the context of out of control illegal drug use was “inherently improbable,” or that there were any obvious reasons to doubt Officer Campbell’s report. In sketching the outer reaches of constitutionally acceptable investigation, the St. Amant court gave a wide berth to a reporter’s investigative practices.

Negligent reporting, while regrettable, does not amount to defamation. This is reflected by recent Pennsylvania case law. In Tucker v. Philadelphia Daily News, 577 Pa. 598, 848 A.2d 113 (2004), the public figure plaintiffs sued two newspaper companies for reporting that plaintiffs were seeking $10,000,000 in damages to their sex life in their lawsuit against members of the music industry. The plaintiffs argued that the newspapers failed to properly investigate the story or interview the best sources, ignored a press release by the plaintiffs and relied on a biased statement by an opposing attorney. The Pennsylvania Supreme Court held that such reporting, even if it was not ideal, failed to establish actual malice. 577 Pa. at 634-35, 848 A.2d at 135-36.

Plaintiff plays with semantics when referring to Officer Campbell as a “mere conduit” for a rumor and characterizing the ultimate source of the information as “anonymous.” Mr. Eskin’s subjective trust of a Temple police officer who he knew personally and whose job duties made it probable that he had a sound basis for the statement is wholly different than an anonymous telephone call. To require Mr. Eskin to delve into the ultimate origin of his source’s information would require the kind of background investigation and fact checking that the courts have consistently rejected. Furthermore, Mr. Eskin’s conversation with the director of Temple’s athletic program, Bill Bradshaw, demonstrates that Mr. Eskin did not conduct his investigation so as to willfully or recklessly avoid the truth.

Plaintiff failed to meet the constitutional requirement of providing clear and convincing evidence that Mr. Eskin made the theft statement about Mr. Blackwell with actual malice. Defendants are entitled to summary judgment on plaintiff’s defamation claim.

C. Defendants Are Entitled to Summary Judgment on Plaintiff’s False Light Invasion of Privacy Claim Because Plaintiff Did Not Produce Evidence That Mr. Eskin Acted With Actual Malice

Plaintiff Blackwell also made a false light invasion of privacy claim. The tort of false light invasion of privacy is based on “publicity that unreasonably places [the plaintiff] in a false light before the public,” and involves a major misrepresentation of a person’s activities, history or character that could reasonably be expected to seriously offend a reasonable person. Strickland v. University of Scranton, 700 A.2d 979, 987 (Pa. Super. 1997). (internal citations omitted)

Just as with claims for defamation, a false light invasion of privacy tort “incorporates the First Amendment’s constitutional protections set forth in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), and its progeny.” Seale v. Gramercy Pictures, 964 F. Supp. 918, 924 (E.D. Pa. 1997). Consequently, to sustain a false light claim, “the person making the statement that is accused of rendering another in a false light must act with ‘knowledge of or ... in reckless disregard as to the falsity of the publicized matter and the false light in which the [plaintiff] would be placed.’” Rush v. Philadelphia Newspapers Inc., 732 A.2d 648, 654 (Pa. Super. 1999) (quoting Larsen v. Philadelphia Newspapers Inc., 375 Pa. Super. 66, 81, 543 A.2d 1181, 1188 (1988). Negligence alone is insufficient to state a false light claim. Thus, a public figure plaintiff must demonstrate clear and convincing evidence that the speaker acted with actual malice in making the offending statement. Rush, 732 A.2d 648.

As discussed above, Mr. Blackwell has failed to present any evidence showing that Mr. Eskin made the theft statement knowing that it was false or probably false, thereby entitling defendants to summary judgment on the false light invasion of privacy claim.

D. Defendants Are Entitled to Summary Judgment on Plaintiff’s “Interference With Prospective Economic Advantage ’’ Claim Where Plaintiff Produced No Evidence of a Prospective Contractual Relation

Plaintiff articulates a claim for “interference with prospective economic advantage” but there is no such claim under Pennsylvania law. After examining the text of Count III of plaintiff’s complaint, as well as subsequent submissions by both parties, this court believes that plaintiff intended to claim “tortious interference with prospective contractual relations.” The elements of this tort are:

“(1) a prospective contractual relation;

“(2) the purpose or intent to harm the plaintiff by preventing the relation from occurring;

“(3) the absence of privilege or justification on the part of the defendant; and

“(4) the occasioning of actual damage resulting from the defendant’s conduct.” Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 412 A.2d 466, 471 (1979).

While recognizing that a prospective contractual relation is “necessarily uncertain,” the Pennsylvania Supreme Court has stated that though it might be “something less than a contractual right,” it “must be more than a mere hope or the innate optimism of the salesman.” Id. at 209, 412 A.2d at 471. A plaintiff must demonstrate that, “but for the wrongful acts of the defendant, it is reasonably probable” that the plaintiff would have entered into a contractual agreement. Thompson, at 209, 412 A.2d at 471. (internal citations and emphasis omitted)

When Mr. Eskin made the theft statement, Temple had already suspended Mr. Blackwell indefinitely for violating team rules. After the broadcast, Mr. Blackwell admitted to Temple and others that he had a serious addiction to cocaine. Mr. Blackwell resigned from Temple. His addiction has continued to the present and, since the broadcast, Mr. Blackwell has been in and out of drug rehabilitation. Within the last year, Mr. Blackwell’s binge cocaine use led him to check into a drag rehabilitation center. (Def. ’s exhibits to their mot. for summ. j. at Blackwell dep. tr. at 415-16.)

In response to defendant’s motion claiming that plaintiff had failed to produce sufficient evidence to sustain the claim, plaintiff produced opinion but no evidence. Mr. Blackwell has not produced any evidence of the existence of a prospective contractual relation between himself and a third party. Instead, he merely asserts that the theft statement has “severely compromised his very employability in his chosen profession.” (Pl.’s mem. of law in opp’n to def.’s mot. for summ. j. at 39.) He also submits Coach Chaney’s speculative opinion that a coach who admittedly used illegal drugs previously while coaching players would be employable but if that same coach was said to have stolen from players, even if the theft were not believed, he would not be employable as a coach. (Pl.’s mem. of law in opp’n to def.’s mot. for summ. j. at exhibit D, Chaney dep. tr. at 134-37.)

Significantly, Mr. Blackwell has provided no evidence of an employer, or even the opinion of an employer, who would be willing to hire him with his current addiction to cocaine but who would not do so because of the theft statement. Richard Englert, Temple’s deputy provost and dean, has said that Temple would not hire a cocaine addict to coach student athletes. (Def.’s reply to pl.’s mem. of law in opp’n to def.’s mot. for summ. j. at exhibit 4, Englert dep. tr. at 9,27-29.)

Mr. Blackwell has failed to provide a single piece of evidence that he has tried to apply for another coaching position at Temple or anywhere else. Mr. Blackwell has provided no job leads, applications or discussions that he has had with prospective employers. Mr. Blackwell has also shown no evidence that the theft statement rather than his cocaine addiction thwarted his employability. Mr. Blackwell has produced nothing more than a “mere hope” of a prospective contractual relation. Mr. Blackwell’s difficult struggle to overcome his cocaine addiction has undoubtedly been the focus of his attention.

Plaintiff has shown neither a prospective contractual relation nor any actual damages that he has sustained, entitling defendants to summary judgment on this claim.

V. CONCLUSION

For the above stated reasons, the Superior Court should affirm this court’s grant of summary judgment on defamation, false light invasion of privacy and tortious interference with prospective contractual relations.

      . Mr. Eskin’s allegedly defamatory statement about Mr. Blackwell was: “But things got so bad Blackwell was involved in a theft problem last year in the team’s locker room.” (Def.’s exhibits to their mot. for summ. j. at exhibit I, “pl.’s civil action comp.” at ¶¶30 and 31.)

      . Plaintiff claims that Officer Campbell was a “disturbed... security guard,” (Pl.’s mem. of law in opp’n to def.’s mot. for summ. j. at 2.) Officer Campbell was not a security guard but a sworn municipal police officer who had attended a police academy before joining the Temple police force. Plaintiff claims Officer Campbell was “disturbed” because he was suspended on October 9,2002 for verbally expressing his anger toward two fellow officers over not being informed of his son’s arrest. (Pl.’s mem. of law in opp’n to def.’s mot. for summ. j. at exhibit F, Bergman dep. tr. at 6-10.) William Bergman, Temple’s Vice President for Operations (which includes directing public safety), testified that Coach Chaney contacted him after the incident and requested that Officer Campbell be given another chance. Mr. Bergman testified that he believed Campbell to be of “sound mind” and allowed him to return to work about three months after the incident. (Def.’s reply to pl.’s resp. to def.’s mot. for summ. j. at exhibit 3, Bergman dep. tr. at 40-41.) In late January of 2003, Officer Campbell left work due to a wrist injury and in April 2003 (weeks after the broadcast at issue in this) Temple urged him to return to work. (Def.’s reply to pl.’s mem. of law in opp’n to def.’s mot. for summ. j. at exhibit 5, “conclusions of law” at ¶6.) Additionally, much of the other personal information that plaintiff recounts about Officer Campbell occurred after Mr. Eskin’s broadcast. All of this information about Officer Campbell is wholly irrelevant in the absence of evidence that Mr. Eskin knew of Officer Campbell’s suspension or believed that his reliability and credibility were at all impaired.

      . Although Officer Campbell was on medical leave during this period because of an injured wrist, Temple requested and approved him to return to work in April 2003. (Def.’s reply to pl.’s mem. of law in opp’n to def.’s mot. for summ. j. at exhibit 5, “findings of fact” at ¶18.)

      . While plaintiff has entitled Count III of his complaint “Interference with prospective economic advantage,” as will be explained infra, this court believes that he intended to claim tortious interference with prospective contractual relations.

      . The court need not reach the issue of whether summary judgment is warranted for individual damages since it granted summary judgment on all of the claims for other reasons. A plaintiff seeking punitive damages in a defamation suit must prove that the defendant made the statements with “actual malice.” Gertz v. Robert Welch Inc., 418 U.S. 323, 349-50 (1974). Since plaintiff has providedno evidence of actual malice, punitive damages would be precluded by law on all claims. Id.

      . To sustain a defamation claim, plaintiff has the burden of proving that the offending statement was false. Hepps v. Philadelphia News

        papers Inc., 506 Pa. 304, 485 A.2d 374 (1984). In this case, defendant Eskin maintains that the statement is true, whereas plaintiff Blackwell has presented some evidence that the statement might be false (i.e., that Blackwell was never involved in a theft in the Temple men’s basketball team’s locker room). Thus, whether the theft statement is false is a disputed fact. Nevertheless, this court’s grant of summary judgment was based on the absence of evidence of actual malice, not on the issue of whether the offending statement was in fact false.

      . Some of the events plaintiff describes happened after Mr. Eskin’s broadcast and are irrelevant to what Mr. Eskin knew when he made the broadcast.

      . Even from an objective analysis, this court fails to see how the knowledge that an individual who is a uniformed police officer is an “obvious reason” to doubt that individual’s veracity about information that he would be likely to learn in the course of his duties.

      . The theft statement was embedded within a longer statement regarding Mr. Blackwell’s illegal drug use and how it interfered with his job performance as an assistant coach. Consequently, anyone who heard the theft statement would also be aware that Mr. Blackwell had a serious drug addiction that compromised his ability to coach. Any further checking of this information would confirm that the illegal drug use was accurate.