Nicholas Malfitano May 21, 2015, 4:07pm


PHILADELPHIA – Per the order of a federal judge, the libel lawsuit brought by a Philadelphia firefighter against the New York Daily News earlier this year has been dismissed, though court records indicate he has appealed that verdict.

Francis X. Cheney II initially sued the Daily News on Feb. 11 in the Philadelphia County Court of Common Pleas, after a photograph of him was used in the publication’s article about an alleged sex scandal.

Cheney made claims for invasion of privacy, libel, defamation and intentional infliction of emotional distress.

The case was removed to U.S. District Court for the Eastern District of Pennsylvania in March.

According to the complaint, the story, titled “Heated Sex Scandal Surrounds Philadelphia Fire Department: ‘It’s Bad Stuff,’” featured below the headline and above the article an image of Cheney dressed in uniform and captioned by name.

The article reported allegations that members of the Philadelphia Fire Department engaged in sexual activity with a paramedic and that charges may be filed.

A follow-up story published the next day described the alleged incidents in more detail and involved accusations of sexual abuse and degradation of a non-consenting city employee, including allegations that the paramedic was “naked and barking like a dog, being paraded around in what appeared to be a Philly fire station on a leash.”

Cheney argues that use of his photo in the first article falsely implicated him as a participant in the alleged behavior and has placed him in a bad light with his friends, family and colleagues.

The claim says that the photo used was taken during a 9/11 ceremony and had no connection to the headline or story concerning the sex scandal. It has since been replaced with the image of a fire department badge.

However, the article with the photo has been copied and re-published on other websites, the complaint says, and there has been no retraction from the New York Daily News or attempt to have the image removed from third party sites.

Cheney says he has been flooded with messages concerning the statements and his reputation as a decorated firefighter has been maliciously damaged by the newspaper.

The Daily News filed a motion to dismiss Cheney’s claims in full the following month, while Judge Stewart Dalzell issued a ruling on the matter May 8, finding in favor of the defense and explaining his rationale for doing so.

Dalzell felt the photo, which was captioned to reflect Cheney was holding a flag at a 9/11 memorial ceremony in 2006, provided sufficient context to reflect Cheney’s connection to the memorial ceremony and not to the scandal being reported in the article.

“Because the inclusion of Cheney’s photograph along with the accompanying caption could not reasonably be read to imply that Cheney was involved in the scandal, Cheney cannot establish a claim for false light/invasion of privacy,” Dalzell wrote.

“Cheney’s photograph appears as one of two in the article, and the first photograph is clearly a generic photograph of a Philadelphia firefighter performing his duties at the scene of a fire several years before the scandal covered in the article.

“In that context, the second photograph, which emphasizes the crest on Cheney’s jacket and clearly indicates via the caption that the photograph is of Cheney performing official duties at a memorial ceremony many years before the scandal at issue, does not imply that Cheney was one of the firefighters involved in the scandal.”

He added that nothing in the article suggested that either pictured firefighter were involved in the scandal.

“While Cheney objects to the proximity of his likeness to a written description of unseemly acts committed by other Philadelphia firefighters, it is clear from the context of the article that Cheney’s photograph was included as stock footage, and there is no reasonable inference from the inclusion of the photograph that he was involved in the scandal,” Dalzell wrote.

Dalzell further found Cheney’s libel and defamation claims failed, due to both an inability to prove malicious intent on the part of The Daily News and a similar lack of proof to connect Cheney to the deviant misconduct described in the article.

Dalzell wrote though Cheney is the only named firefighter in the publication, there was nothing contained in the article directly connecting him to the described scandal. Which, Dalzell explained, made the innuendo suggested by Cheney “not warranted, justified, or supported by the publication.”

As to the count of intentional infliction of emotional distress, Dalzell decided, “The Daily News’s alleged conduct is not sufficiently extreme or outrageous to establish liability for intentional infliction of emotional distress.”

“Being falsely implicated in lewd or lascivious conduct is unfair and unfortunate – and sometimes defamatory – but not extreme or outrageous. Further, as explained above, the article is not capable of reasonably being understood as referring to Cheney or implicating him in the scandal and therefore does not defame him,” Dalzell said.

The judge then proceeded to dismiss Cheney’s claims in their entirety, thereby granting the defendant’s motion. Through his counsel, Cheney filed an appeal to the decision on May 15.

The matter now awaits further action.

The plaintiff is represented by Gonen Haklay and James P. Goslee of Cohen Placitella & Roth, in Philadelphia.

The defendant is represented by Michael Berry and Elizabeth Seidlin-Bernstein of Levine Sullivan Koch & Schulz, also in Philadelphia.

U.S. Eastern District Court of Pennsylvania case 2:15-cv-01194

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nickpennrecord@gmail.com

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