Nicholas Malfitano Feb. 9, 2016, 1:52pm


PHILADELPHIA – The U.S. Court of Appeals for the Third Circuit has ruled in line with the U.S. District Court for the Eastern District of Pennsylvania in upholding the dismissal of a libel lawsuit brought by a Philadelphia firefighter against the New York Daily News nearly one year ago.

Francis X. Cheney II initially sued the Daily News on Feb. 11, 2015 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. The case was removed to U.S. District Court for the Eastern District of Pennsylvania in March.

According to the complaint, the Jan. 29, 2015 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. However, it is “undisputed” Cheney was not involved with the behavior described in both the original article and a follow-up story published in the Daily News the following day.

On these grounds, Cheney made claims for invasion of privacy, libel, defamation and intentional infliction of emotional distress, saying his reputation as a decorated firefighter was maliciously damaged by the newspaper.

The Daily News motioned for dismissal, arguing Cheney could not establish that the allegedly defamatory material – in the text of the articles – was capable of being reasonably understood as concerning him. The District Court opted to grant The Daily News's dismissal motion last May.

Cheney timely appealed, believing the District Court erred in dismissing his claims for defamation, false light invasion of privacy and intentional infliction of emotional distress.

Writing on behalf of fellow Judges Michael A. Chagares and Maryanne Trump Barry, Judge D. Michael Fisher authored the Third Circuit’s Feb. 5 opinion to uphold the decision of the District Court in dismissing Cheney’s claims.

Fisher said in order for Cheney to recover on his defamation claim, he needed to prove the supposedly defamatory material in question was “of and concerning him”, in other words, “whether the defamatory material was capable of being reasonably understood as intended to refer to the complainant.”

Fisher believed Cheney failed to illustrate that connection on appeal.

“Cheney cannot show that the allegedly defamatory material in the article is capable of being reasonably understood as referring to him. The article does not name Cheney or indicate in any way that Cheney was involved in the scandal,” Fisher said.

“Although the accompanying photograph is of Cheney, the caption makes clear that it is a stock photograph meant to illustrate firefighters in general, not those involved in the scandal,” Fisher added.

As Pennsylvania has adopted the Restatement of Torts definition of false light invasion of privacy (which mandates showing that a defendant “gave publicity to a matter concerning another”), Fisher stated Cheney’s false light invasion of privacy claim failed on similar grounds.

“As explained above, the articles are not capable of being understood as to suggest that Cheney was involved in the sex scandal. Thus, they are not ‘of and concerning’ Cheney,” Fisher said. “For the same reasons that Cheney’s defamation claim fails as a matter of law, so too does his false light invasion of privacy claim.”

Finally, as to Cheney’s intentional infliction of emotional distress claim, Fisher believed the plaintiff had not showed the Daily News’ actions rose to a level deemed “extreme and outrageous”, as the claim stipulates under Pennsylvania law.

“As the District Court correctly found, even if the article were to create the false impression that Cheney was involved in the scandal, it does not rise to the level of ‘extreme or outrageous,” Fisher said, adding Pennsylvania courts have previously found extreme and outrageous conduct only in the “most egregious” of situations.

“Under this standard, and accepting all of Cheney’s allegations as true, publication of a defamatory article suggesting Cheney was involved in a sex scandal cannot support a cause of action for intentional infliction of emotional distress,” Fisher said. “Thus, the District Court did not err in dismissing Cheney’s intentional infliction of emotional distress claim.”

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. Court of Appeals for the Third Circuit case 15-2251

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

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

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