Nicholas Malfitano Mar. 25, 2016, 12:08pm


PHILADELPHIA – The matter of a libel lawsuit brought by a Philadelphia firefighter against the New York Daily News, dismissed by the U.S. Court of Appeals for the Third Circuit early last month, will be reheard by the panel of judges who decided the case.

Per court records, Francis X. Cheney filed a rehearing petition on Feb. 24, citing a contrast in the Court's Feb. 5 decision with Third Circuit precedent and a “question of exceptional importance”.

Cheney and his counsel argue the prior decision in this matter “sets a dangerous precedent by rendering permissible, as a matter of this law, the unfettered use of any image of any unrelated individual coupled with any nature of salacious, offensive, or scandalous written content – as long as the content itself doesn’t directly provide the name of the innocent individual.”

On Tuesday, Third Circuit Judge D. Michael Fisher granted Cheney’s petition and said the case would be listed for argument at the convenience of the judges’ panel, consisting of himself, Judge Michael A. Chagares and Judge Maryanne Trump Barry.

Cheney 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.

Ultimately, Fisher, Chagares and Trump Barry decided Cheney had not proven the defamatory material in question was “of and concerning him”, or “whether the defamatory material was capable of being reasonably understood as intended to refer to the complainant.”

“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 in the Third Circuit’s Feb. 5 opinion.

The plaintiff is represented by James G. Begley III and James P. Goslee of Cohen Placitella & Roth, in Philadelphia.

The defendant is represented by Michael L. 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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