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HomeMy WebLinkAbout96-03190 "'t , " 't ~ ~ ~ ':l ..e. lot u .~ l.i ", . ) // / , I i I .f. I '- ~ - I - :> .- cJ I I 0 I I 0- , - ~ :; 0--. ,...A' " 96-3190 CIVIL TERM defamation; and (b) publicity placing a person in a false ligbt. The defamation claim alleges tbat both the Heaest Corporation and Mrs. Cassidy caused the false implication "that Ms. Firestone's parental eight.s in John and Emory had been terminated." (PI:s Amd. Compl. pams. 25-27) The false light publicity claim alleges that the photograph puhlished places Ms. Firestone in n fnlse light; namely, by suggesting thnt her parentnl rights were terminated. The action against the Hearst Corporation was terminated on October 2, 1996, hy an order sustnining preliminary objections, which order was unopposed. In the meantime, the defendant Cassidy riled an answer with new matter. Now before the court is her motion for judgment on the pleadings. Judgment on the pleadings may only be entered where tbere arc no disputed issues of fact and the moving party is entitled to judgment as a matter of law. When determining if there is a dispute of fact, the court must limit its consideration to pleadings and other related documents. Vetter v. Fun Footwear Co., 447 Pa. 84, 87, 668 A2d 529, 531 (1995), alloc. denice!, 544 Pa. 658, 676 A.2d 1199 (1995). A motion for judgment on the pleadings is in the nature of a demurrer. Thus, all of the opposing party's well pleaded allegations arc deemed to be true. Only those facts specifically admitted by him may be construed against him. Seioal v. Corson. Mitchell, Tomhave & McKinlev, M.D:s. Inc., 445 Pa.Super. 427, 430, 665 A2d 1198, 1199 (1995). Such a motion will be granted only where the moving party's right to succeed is certain and so free from doubt that trial would be a fruitless effort. In re Estate of 810m, 434 Pa.Super. 111,117,642 A2d 498, 501 (1994), alloe. denied, 539 Pa. 694, 653 A2d 1232 (1994). To state a cause of action for defamation a plaintiff must prove I) the defamatory character of the communication, 2) its puhlieation hy the defendant, 3) its application to the plaintiff, 4) an understanding hy the recipient of its defamatory meaning, 5) an understanding hy the recipient that is was intended to he applied to the plaintiff, 6) special harm resulting to the 2 96-3190 CIVu.. j'ERM plaintiff from its puhlieation, and, if applicable, 7) ahuse of a conditionally privileged occasion. Doul!hertv v. Bovertown Times, 377 Pa.Super. 462, 471, 547 A.2d 778, 782 (1988); 42 Pa. Cons. Stat. Ann. Sec. 8343(a). Bctilre the plaintiff must shoulder this hurden, the court must decide in the first instancc whether the challenged statements are capable of a defamatory meaning. Krveski v. Seltt Glass Teehnolol!ies, 42/\ Pa.Super. 105, 11/\, /\2/\ A.2d 595, /\00 (1993), alloc. denied, 53/\ Pa. 643, 639 A.2d 29 (1994); Zartman v. Lehil!h Countv Humane Societv, 333 Pa.Super. 245, 250, 482 A.2d 2/\/\, 2/\8 (1984). The Pcnnsylvania Supreme Court in Baker v. Lafavette Collel!e, 51/\ Pa. 296,532 A.2d 399 (1987), stated that, in order to determine if a defamatory meaning exists, the court must take the statement in context and determine if it was maliciously written or published. To be defamatory, the statement must hlaeken a person's reputation or expose him to puhlie hatred, contempt, or ridicule, or injure him in his business or profession. The test to be applied in evaluating the statement is "thc cffect thc artielc is fairly calculated to produce, the impression it would naturally engender, in the minds of the avcrage persons among whom it is intended to circulate." Id. at 29/\, 532 A.2d at 402 (citing Corahi v. Curtis Publishim! Comoanv, 441 Pa. 432, 273 A.2d 899 (1971)). The question is not if a non-defamatory interpretation exists, but rather if thc non-dcfamatory interpretation is thc only reasonahlc one. Zartman, 333 Pa.Super. at 452, 482 A.2d at 269. Applying these well established legal principlcs to thc case sub iudiee, wc hold that the statements made arc not defamatory. The questioned photograph and caption do not appear on thc facc of thc plcadings to havc hccn maliciously puhlishcd. The caption merely labcls the group as a family. Both parties agrec that hoth John and Emory Fircstone were placed in foster care with the Cassidy family in 1988. The two hoys rcmained with thc Cassidy family until 1994. (PI:s Amd. Compl. paras. /\, 7, 3 96-3190 CIVIL TERM 8; Def. Cassidy's Answr. paras. /\, 7, 8) To call this six-year arrangement a "family" cannot be said to be malicious. One must query whether it would have been more injurious to Ms. Firestone for the picture's caption to underscore the fact that her ebildren were not in her earc. The publication of the photograph and the caption do not hlaeken the reputation of Ms. Firestonc, nor docs it expose her to ridicule. In fact, nowhere in the alleged defamatory statement or photograph is Ms. Firestone even mentioned. Accordingly, Mrs. Cassidy's motion regarding the defamation claim will be granted. Wc next turn to the false light invasion of privaL')I claim. In order to state a e:\llse of action for false light invasion of privacy, I) the puhlicity must place anotber "before the public in a false light" which would be "highly offensive to a reasonahlc pcrson," and 2) the one who gave the publicity to thc matter must havc "had knowlcdge of or acted in reeklcss disrcgard as to . . . thc false light in which the othcr was placcd." Parano v. O'Connor, 433 Pa.Supcr. 570, 575, 641 A.2d 607,609 (citing Ncish v. Bcavcr Ncwsllaocrs. Inc., 398 Pa.Supcr. 588, 598, 581 A.2d /\19, 624 (1990), aooeal denicd. 527 Pa. 648, 593 A.2d 421 (1991)). The publicity here is not falsc. Thc group picturcd in thc January 1994 photograph is a family, albeit a foster family. Sccondly, wc do not find that thc statements madc were highly offensive in nature. On the facc of thc pleadings, wc can determine no set of facts, if proven, that would be highly offensivc to a rcasonablc pcrson. Sec Para no, 433 Pa.Supcr. at 575, /\41 A.2d at 609. To bc highly offcnsivc thc publicity must be highly objectionablc, unreasonable, and involve a major misrepresentation. Id. When one's ehildrcn arc in foster carc, and a pieturc of the children with thc foster parents is publishcd and labclled a "family," cmbarrassmcnt may be caused to thc biological family, but it is not highly offcnsivc. Thcrcforc, thc motion of Mrs. Cassidy regarding thc false light claim will bc grantcd. 4 ~ ('oJ ~ In ,- I~ e- N 5!l: ,-'z t; - -) ;J: r~ 0: ,~ .. :0; r1 (\J ~! ;:.0' .:.. 'i~ L1, ..... ~ '--' 'j c:> ::~ t3 V'> ~) O' U Douglas B. Marcello, Esquire THOMAS, THOMAS & HAFER 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 (717) 255-7238 (717) 237-7105 (Fax) " OJ) q ~:: 0' '"t':' n ::1 C) [~, ~ hi :': j N .., (j~ . . . ) ....~ . . , ~:: \, .." ,.J ~:; ( :.:; I) -., l ~ ~~ -, - , :.n ~ - 1-.> Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 1996-3190 DOROTHY FIRESTONE v. CIVIL AOION - LAW THE HEARST CORPORATION and KAY CASSIDY JURY TRIAL DEMANDED Defendants CERTIFICATE OF SERVICE AND NOW, this 18th day of October, 1996, I, 8ARBARA A. ONORATO, a Legal Assistant at the law firm of Thomas, Thomas & Hafer, hereby certify that I sent a true and correct copy of the foregoing Request for Production of Documents of Defendant Kay Cassidy Directed to the Plaintiff, by placing a copy of the same In the United States Mall, first class, postage prepaid, to the following: Thomas Blackburn, Esquire P.O. Box 62 New Cumberland, PA 17070 Jack M. Stover, II, Esquire 30 North Third Street 8th floor Harrisburg, PA 17101 Date: October 4, 1996 ~o~ Barbara A. Onorato Legal Assistant >- Ii') '" cr. ''" t:.: -, .; f" 1j w!: '. 0-,- ; , f~~ , J_ _, , ,. , J I.., S" '0 ,- , '..} 'J CV Ur' , ; 5 ~l (' "i,j '. -, ; ~ _.1.. I L.;' . \. \'::J ',:) C) (;', U 11"11 IIII I II 4. In December of 1994, while John and Emory were foster children judicially- placed with the Cassidys, the Redbook magazine, a Hearst publication, announced a contest soliciting photographs of snow sculptures (hereinafter "Snowman Contest"). (Compl. ~ 13). 5. In January 1994, Cassidy's fosler child, John, created a snow sculpture of a grecn dinosaur sitting on a fallen snowman. (Compl. ~ 10; Ex. I). 6. John created the snow sculpture in the front yard of the Cassidy homc. (Compl. ~ 10). 7. John's foster mother, Ms. Cassidy, caused a photograph to be ercatcd of the ~1l0W sculpture which she submitted to RediJOok pursuant to the Snowman Contest solicitation. (Compl. 'lI~ II, 14). 8. In addition to the snow dinosaur fcatured in the photograph submittcd by Ms. Cassidy, five individuals were also pictured. (Compl. 'lI14; Ex. I). 9. The photograph featured Ms. Cassidy, an adult male, the husband of Ms. Cassidy, and three children. Two of the children were the Cassidy's foster children, John and Emory. (Compl. 'lI 14; Ex. I). 10. At the time the photograph was taken, John and Emory had lived with the Cassidys for nearly six (6) years. (Compl. 'lI'lI 5, 6, 10). II. In her submittal to Redbook, Ms. Cassidy identified hcrself as thc mothcr of John and Emory as well as the other child fcatured in the photograph, Miehacl. (Compl.,1 5). 12. In the December 1995 issue of Good Housekeeping, anothcr Ilcarst publication, photographs of the winning entries in the Redbook Snowman Contcst wcrc fcaturcd in a two-page, lighthearted article featuring a total of 10 photographs. (Com pI. 'lI'lI1 K, 20; Ex. 2). ..2. 21. The term "family" includes foster children. 22. Because Plaintiff's sons, John and Emory, had lived in the Cassidy home (after being judicially-placed) for nearly six (6) years beinj,l raised by the Cassidys, these two children were members of "the Cassidy family." 23. Because the caption to the photograph in the December 1995 issue of Good HOllsekeeplng is true, Defendant Hearst is entitled to a dismissal of Counts I flld II of Plaintiffs Amended Complaint because they arc legally insufficient. B. No Nellllllence Or Reckless Disre~ard For The Truth 24. Paragraphs I through 23 arc hereby incorporated by reference as if fully set forth herein. 25. For PlaintilTto state a cause of action for defamation she must establish Hearst acted negligently. 26. For PlaintilTto state a cause of action for false light invasion of privacy, she must establish that Hearst acted in reckless disregard as to the falsity of the publicized matter. 27. Hearst was not negligent or reckless as a matter oflaw in referring to the five individuals featured in the photographs as "the Cassidy family" because John and Emory, as foster children of the Cassidy's for nearly six years, were part of the Cassidy family. 28. Hearst was not negligent or reckless ns a matter of law in referring to the five individuals featured in the photograph as "the Cassidy family" becausc Ms. Cassidy expressly identified herself as the mother of the children in the photograph when she submitted her entry to Rcdbook. (Comp!. ~ 15). -4. 37. For Plaintiff to establish a cause of action for false light invasinn of privacy, the publication must be highly offensive to a reasonable person. 38. Although six million copies of the Good Housekeeping magazines were published, the only relevant audience in this case are those few "acquaintances" of the Plaintiff who Plaintiff claims read the December 1995 issue. (Compl. ~ 23). 39. Nothing in the publication complained of (Ex. I hereto) is capable ofa defamatory or highly offensive meaning -- it cannot be reasonably read as being capable of lowering Plaintiffs reputation in the community. 40. By limiting the relevant audience she complains of to Plaintiffs acquaintances, however, Plaintiff establishes as a matter of law the communication is incapable of being defamatory or highly offensive. No reader, not even a close personal friend of Plaintiff, could reasonably make the leap of faith to construe the article as Plaintiff suggests. 41. In addition, even if an acquaintance of Plaintiff read the article in the December 1995 issue of Good Housekeeping and was able to identify John and Emory solely by their photo as Plaintiffs natural children, that acquaintance would necessarily know that the two boys were living in the Cassidy home as the Cassidy's foster children. 42. Hearst's reference to "the Cassidy family" therefore only serves to restate what Plaintiffs acquaintances already knew as fact and in in no way defamatory or highly offensive. 43. Because the article at issue is incapable of a defamatory or highly offensive meaning for the reasons above-stated, Plaintiff is entitled to a dismissal of the Amended Complaint. -6- '-,...,. -A' 1 r-' .' . ~ ' , I '. 'f , , . . " "11.; . . , 'Jl,- (' ('...... . .' .,. . t'_\/~, ~ 10.. .,r " , ". , ., @ e ! . '. ~ i' . . i . l , ~ ~ . , . . " " '~ .. ~ . ; -'.. . :. ~ . " . ~ Jo . \ I . ..I , I , . " J :, I , . , i ~ ~ ~i~ I ;., ~ r' .., '. ,', ,[ ""f , l . . i' . i r t . " I', 'I \ It; I .: . ~ i ii ". i I ~ , , , . il. '1 > IiI I i I ;~ I ~ t' ~,~~ I' ~ l'} r '~~"":, ~ t ., f I j I , I ~ I " ;'j<r I. .; '.. i I' ~> .' 1 ,t ., I ;,; r f P, " 2 r-' .' . ,.,1" I,,' ., \ , ' . " 1..1l: . -i... -, -1'".1 ;- (~,~, ~ i ,1Ii'. , ,J. "\. ....,.. I' I . " , "'.' , ! ~ ~ ~ l. . :tf' ~ '1,' t. j}4" ." .: I,e.,:=a.,, "f' .ft'":' r 1 r " '1)"t '- ~ I . .......,.,. I . , , , ; , v ; ~~ - " 't , , .' " , 'J .. IJ . -- , i: < .i (, ! r..:; [, . , i , , , 'J , <. , J I , , J L J < , .J " . ~;L , UIE Ii ulill ~~ II * 'j-.. .) ~ I" " L., ~~ \ ~ ~ ~~ ~ - I"'> iT: t- '- ~ )l::. ~( C'1 " ~ 1\ ~- .. . t) n @~l~' n ,),~ ...... .~ I.J e- '11 ;'.: I ~.... ,- ;;) p (, : ~~ g' .0 ~ .<;;;) -" U: I '.J) ~ ,-. l.r) fC~!: :~. , '? '" .'itil ? ,.. t_j ,.I(l. <.) ..,") :~ ) u' ( ) . .' \ . ,. .." DOROTHY FIRESTONE, Plaintiff, v. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 1996- 3190 Civil Term THE HEARST CORPORATION and KAY CASSIDY, Defendants CIVIL ACTION - LAW JURY TRIAL DEMANDED Cill!PLAINT NOW comes Plaintiff Dorothy Firestone by and through the undersigned attorney and brings this Complaint, and in support the=eof avers as follows: 1. Plaintiff Dorothy Firestone (Ms. Firestone) is an adult individual resident in York County, Pennsylvania. 2. Defendant Kay Cassidy (Mrs. Cassidy) is an adult individual resident in Cumberland County, Pennsylvania at 38 Center Drive, Camp Hill, PA 17011. 3. Mrs. Cassidy is married to and lives with Michael Cassidy (Mr. Cassidy) with whom she has a son Michael Cassidy, Jr. (MiChael) who also lives with them. 4. Defendant The Hearst Corporation (Good Housekeeping or Redbook) is a Delaware corporation with a principal place of business in the state of New York at 959 Eighth Avenue, New York, NY 10019-3795. 5. Ms. Firestone has two sons, John Firestone (John) born September 16, 1975 and Emory Firestone (Emory) born JUly 15, 1986. 6. In 1988, John and Emory were adjudicated to be dependent juveniles and placed in foster care with Mr, and Mrs. Cassidy. 1 7. John remained placed with Mr. and Mrs. Cassidy until his graduation from high school in May 1995. 8. Emory remained placed with Mr. and Mrs. Cassidy until ordered by the court to be returned to his mother in August 1995. 9. At no time were Ms. Firestone's parental rights in either John or Emory terminated. 10. In January 1994, John created a snow sculpture of a dinosaur (snow dinosaur) in the yard at Mr. and Mrs. Cassidy's house. 11. Various pictures were caused by Mrs. Cassidy to be taken of the snow dinosaur with John, Emory, herself, and others. 12. Defendant The Hearst Corporation publishes a monthly magazine known as Redbook. 13. The December 1994 issue of Redbook announced a contest soliciting photographs involving snow sculptures. 14. Mrs. Cassidy entered the contest and submitted a photograph of the snow dinosaur with herself, Mr. Cassidy, Michael, John and Emory. 15. In submitting this photograph, Mrs. Cassidy identified herself to Redbook as the mother of John and Emory, as well as Michael. 16. Al though knowing she is not the mother of John and Emory, Mrs, Cassidy so identified herself intentionally. 17. Redbook judged the photograph submitted by Mrs. Cassidy to be a winner of its contest. 18. Defendant The Hears t Corporation also publishes a monthly magazine known as Good Housekeepinq. 2 19. Good House~~lng is a magazine of good repute each issue of which is pUblished in excess of six million copies nationwide. 20. The photograph submitted by Mrs. Cassidy was pUblished in the December 1995 issue of Good Ho~~. 21. The December 1995 issue of QQ9~eepinq identified John, Mrs. Cassidy, Emory, Mr. Cassidy, and Michael as "the Cassidy family of Camp Hill, PA." 22. The individuals pictured in Good Housekeepinq do not comprise "the Cass idy family" for John and Emory are not the children of Mr, and Mrs. Cassidy. 23. Acquaintances of Ms. Firestone who read the December 1995 issue of Good Housekeepinq understood the identification of the picture to mean that her parental rights in John and Emory had been terminated. COUNT I - DEFAMATION 24. Paragraphs 1 - 23 are hereby incorporated by reference as if set out in full herein. 25. The December 1995 issue of Good Housekeepinq falsely implied that Ms. Firestone's parental rights in John and Emory had been terminated. 26. The false implication that Ms. Firestone's parental rights in John and Emory had been terminated was defamatory. 27. The Hearst Corporation and Mrs. Cassidy jointly caused to be published this defamation of Ms. Firestone. 28. Mrs. Cass idy knew that she is not the mother of John and 3 Emory. 29. Mrs. Cassidy knew that identifying this group as "the Cassidy family of Camp Hill, PAn was false and that it would defame Ms. Firestone. 30. The Hearst Corporation acted in reckless disregard as to the falsity of the identification of John and Emory and the defamation of Ms. Firestone, 31. The Hearst Corporation acted negligently as to the falsity of the identification of John and Emory and the defamation of Ms. Firestone. 32. Mrs. Cassidy and the Hearst Corporation acted jointly in publishing to this photograph and identifying the individuals as "the Cassidy family of Camp Hill, PA." 33. As a result of this defamatory publication, MI3. Firestone suffered harm to her reputation. 34. As a result of this defamatory publication, Ms. Firestone suffered emotional distress. WHEREFORE, Plaintiff respectfully prays this Honorable Court to order Defendants Kay Cassidy and The Hearst Corporation jOintly and severally to pay to the Plaintiff dal'lages, including punitive damages, in an amount in excess of the jurisdictional amount requiring arbitration referral by local rule and order any other relief as the court deems appropriate, together with allowable attorney fees, interest, and costs. 4 COUNT II - PUBLICITY PLACING A PERSON IN FALSE LIGHT 35. Paragraphs 1 - 34 are hereby incorporated by reference as if set out in full herein. 36. The December 1995 issue of Good Housekeeping falsely implied that Ms. Firestone's parental rights in John and Emory had been terminated, 37. The December 1995 issue of !JQQ..<L.JIousekee11-1ll-.!l placed Ms. Firestone in a false light. 38. The Hearst Corporation and Mrs. Cassidy jointly gave publicity to this matter placing Ms. Firestone in a false light. 39. Mrs. Cassidy knew that she is not the mother of John and Emory. 40. Mrs. Cassidy knew that identifying this group as "the Cassidy family of Camp Hill, PAlO was false and that it would place Ms. Firestone in a false light. 41. The Hearst Corporation acted in reckless disregard as to the falsity of the identification of John and Emory and the false light in which Ms. Firestone was placed. 42. Mrs. Cassidy and the Hearst Corporation acted jointly in giving pUblicity to this photograph and identifying the individuals as "the Cassidy family of Camp Hill, PA." 43. It is highly offensive to a reasonable person to have a national magazine publish a picture of one's children identified as someone else's family. 44. Ms. Firestone felt seriously offended and aggrieved by the 5 ., '.J.I >:: co - c' , l>~ ~ (-:, ;~) IU~' . If< )"'." . ~ 1.. I.i' L'_ -':7"1 0.: 0'-. ,-. :,) "1 , UILo..- 'r:J EL" . ::-1 i ~~1 I~ -, ~U- 1'- ,,, j 0 ...:;- :.J f;:: (". ., \-; .-f u)(. .:.1 , e'l ~ ., W:r I:" ,~ :':i.: -;.J q, r 0 ," e' 1/; ~, ~I"'- . j li\1 u-" -i' - d ~:).. L. ,n ._l L.J ,~ - , 0 >. ~', , l>: j' -, IU~ , " (.) .- f.t L_ ... Co: ,)1" .1 t." !-.( -. .1 lL t f , ~ 1 " " t' , . \. , , .) . . .. PRAECIPE FOR I.ISTING CASE FOR ARGUMENT (Hur,t be t:ypcwri ttcn am subnitted in duplicate) TO TilE PROTIIONOTMIY Of' CUMBERLANl> COUNTY: Pleanc 115t the within n;Juer for the next ArtJl.InCnt CO-1rt. --------------------------------------------------------------------------------------- CAPTION OF CASE (entire caption mUf,t be stated in full) ( Ptdintiff) n , '" , ) , ..n , . \ ~ . "l , I , ') " IJ I ,.il ( '(,1 ",J) -"] ,., ? (:) :1'11 :",1 -::> ::J Iv "'. DOROTIIY FIRESTONE, vs. THE HEARST CORPORATION and KAY CASSIDY, (Defendant) I":l. 3190 Civil 19 ~6 1. state matter to be argued (Le.. plaintiff's llJ:ltion for new trial. defendant's demurrer to complaint. etc.): Defendant, The Hearst Corporation's, preliminary Objections to Amended Complaint 2. Identify counsel IooIho will argue case: Thomas Blackburn, Esquire (a) for plaintiff: P.O. Box 62 ~s: New Cumberland, pA 17070 Jack M. stover, Esquire Buchanan Ingersoll 30 N. Third st., 8th Floor Harrisburg, pA 17101 3. I will notify all parties in writing within t100 days that this case has been listed for argunent. (h) for defendant: Address: 4. Argurent Court Date: October 2, 1996 ooted: SeptembeI 5, 1996 corporation-- ~ Cassidys until he left for service in the United States Army in September of 1995. 8. Admitted. 9. Admitted. 10. Denied as stated, A snow sculpture of a dinosaur was created with the joint efforts of Mrs, Cassidy, John, and Emory. 11. It is admitted that pictures of the snow dinosaur, with John, Emory and Mrs, Cassidy and others were taken, 12. Denied. Answering Defendant is without information or belief as to the truths of the averments in Paragraph No. 12, hence it is denied and proof is demanded at time of trial. 13. Admitted in part. It is admitted that Redbook initiated a contest soliciting photographs of snow sculptures. Any and all of the averments of Paragraph No. 13 are denied and proof is demanded at time of trial. 14. Admitted in part. It is further averred that Mrs. Cassidy also submitted several other photographs of just the dinosaur for consideration in the contest. 15. Denied. It is denied that Mrs. Cassidy at any time identified herself as the mother of John and Emory. 16. Denied. It is denied that Mrs. Cassidy identified herself as the mother of John and Emory. 17. It is admitted that Good Housekeeoino judged the photographs submitted by Mrs. Cassidy to be the winner of the contest. Any and all contrary averments are denied and proof is demanded at time of trial. - 2 - 18. Denied. Answering Defendant is without information or belief as to the truths of the averments in Paragraph No. 18, hence it is denied and proof is demanded at time of trial. 19. Denied. Answering Defendant is withou~ information or belief as to the truths of the averments in Paragraph No, 19, hence it is denied and proof is demanded at time of trial, 20. Admitted in part, It is admitted that Good Housekeeoina selected one of th'!l fou. photugrapns submltted by Mrs. Cassidy ft'l' publication in the December 1995 issue of Good Housekeeoina. 21. Denied as stated. It is admitted that Good Housekeeoina, in its December 1995 issue, states, "below, another cool winner, by the Cassidy family of Camp Hill, PA, who made a snowdinosaur that sat on Frosty after d 'monstrous' snowstorm." It is denied that Emory or John are specifically identified by name, or are identified as being members of the Cassidy family themselves. 22. Denied. Answering Defendant is without information or belief as to the truths of the averments in Paragraph No. 22, hence it is denied and proof is demanded at time of trial. 23. Denied. Answering Defendant is without information or belief as to the truths of the averments in Paragraph No. 23, hence it is denied and proof is demanded at time of trial. - 3 - COUNT I - DEFAMATION DOROTHY FIRESTONE V. THE HEARST CORPORATION AND KAY CASSIDY 2~. Paragraphs No.1 through No. 23 of Defendant's Answer is incorporated herein and made a part hereof as if set forth in full. 25. Denied. It is denied that the December 1995 issue of Good Housekeeoina falsely implied that Ms. Firestone I s parental rights in John and Emory had been terminated. 26. Denied. Any and all allegations and implication that Ms. Firestone's parental rights in John and Emory had been terminated is denied, It is denied that any statements in the publication, and/or made by Mrs. Cassidy were false or defamatory. 27. Denied. It is denied that the Hearst Corporation and Mrs. Cassidy jointly caused to be published any defamation of Ms. Firestone. Any and all allegations of defamation are denied and proof is demanded at time of trial. 28. Denied as stated. Mrs. Cassidy was the foster mother of John and Emory. 29. Denied. It is denied that Mrs. Cassidy identified the group as "the Cassidy family of Camp Hill, PA." It is denied that Mrs. Cassidy made any statements as alleged in the Complaint that were false or defamatory as to Ms. Firestone. Any and all allegations that the statements made by Mrs. Cassidy were false and or defamatory is denied and proof is demanded at time of trial. - 4 - 30. Denied. The averments of Paragraph No. 30 state a conclusion of law to which no responsive pleading is required. In the alternative, the averments are directed to a party other than answering Defendant. Any and all allegations that Mrs. Cassidy made a defamatory or false statement is denied and proof is demanded at time of trial. 31. Denied. The averments of Paragraph No, 31 state a conclusion of law to which no responsive pleading is required. In the alternative, the averments are direct~d to a party other than answering Defendant. Any and all allegations that Mrs. Cassidy made a defamatory or false statement is denied and proof is demanded at time of trial. 32. Denied. It is denied that Mrs. Cassidy acted jOintly with the Hearst Corporation and/or pUblished the photograph, or identified the individuals as "the Cassidy family of Camp Hill, PA." Any and all allegations of defamation are denied. 33. Denied. Answering Defendant is without information or belief as to the truths of the averments in Paragraph No. 33, hence it is denied and proof is demanded at time of trial. Any and all allegations of defamation are denied. 34. Denied. Answering Defendant ~s without information or belief as to the truths of the averments in Paragraph No. 34, hence it is denied and proof is demanded at time of trial. WHEREFORE, Defendant requests this Honorable Court to dismiss Plaintiff's Complaint. - 5 - COUNT II - PUBLICITY PLACING A PERSON IN FALSE LIGHT DOROTHY FIRESTONE V. THE HEARST CORPORATION AND KAY CASSIDY 35, Paragraphs No.1 through No. 34 of Defendant's Answer is incorporated herein and made a part hereof as if set forth in full. 3 Ii. Denied, It is denied that the December 1995 issue of Good Housekeeoinq falsely implied that Ms. Firestone's parental rights in John and Emory had been terminated. 37. Denied. It is denied that the December 1995 issue of Good Housekeeoinq placed Ms. Firestone in a false light. 38, Denied. It is denied that Mrs. Cassidy, individually or jointly with the Hearst Corporation, gave publicity to this matter or placed Ms. Firestone in a false light. 39. Denied as stated. Mrs. Cassidy was the foster mother of John and Emory. 40. Denied. It is denied that Mrs. Cassidy identified the group as "the Cassidy family of Camp Hill, PA." It is denied that any statements made by Mrs. Cassidy were false and/or placed Ms. Firestone in a false light. 41. Denied. The averments of Paragraph No. 41 state a conclusion of law to which no responsive pleading is required. In the alternative, the averments are directed to a party other than an6wering Defendant, hence it is denied and proof is demanded at time of trial. - 6 - 42. Denied. It is denied that Mrs. Cassidy acted jointly with the Hearst Corporation and/or identified the individuals as "the Cassidy family of Camp Hill, PA." 43. Denied. The averments of Paragraph No. 43 are denied and proof is demanded at time of trial. It is specifically denied that Mrs. Cassidy identified the group as "the Cassidy family," 44. Denied. Answering Defendant is without information or belief as to the truths of the averments in Paragraph No, 44, hence it is denied and proof is demanded at time of trial. 45. Denied. It is denied that any action or statement by Mrs. Cassidy caused Ms. Firestone to be seriously offended and/or aggrieved. Any and all other averments of Paragraph No. 45 are denied and proof is demanded at time of trial. 46. Denied. Answering Defendant is without information or belief as to the truths of the averments in Paragraph No. 46, hence it is denied and proof is demanded at time of trial. 47. Denied. Answering Defendant is without information or belief as to the tn:ths of the averments in Paragraph No. 47, hence it is denied and proof is demanded at time of trial. 48. Denied. Answering Defendant is without information or belief as to the truths of the averments in Paragraph No. 48, hence it is denied and proof is demanded at time of trial. 49. Denied. Answering Defendant is without information or belief as to the truths of the averments in Paragr.aph No. 49, hence it is denied and proof is demanded at time of trial. - 7 - WHEREPORE, Defendant requests this Honorable Court to dismiss Plaintiff's Complaint, NEW MATTER By way of additional answer and reply, Defendant raises the followir.g New Matters. 50. Plaintiff has failed to state a claim, including but not limited to, for defamation and or false light publicity. 51. Plaintiff's claims for defamation are barred by the truth of the statements made by Defendant, Kay Cassidy. 52. Plaintiff's claims are barred by Defendant, Kay Cassidy's immunity to the extent they are made with regard to activities while she was in the service of Children and Youth Services. 53. Plaintiff's claims are barred as any statements by Defendant, Kay Cassidy, were privileged to the extent they were made while she was in the service of Children and Youth Services. 54. Some or all of Plaintiff's claim may be barred by the statute of limitations. 55. Plaintiff's claim for punitive damages is violative of the due process and equal protection clauses of the Fourteenth Amendment to the Constitution of the Unites States Section 1983 Title 42 of the United States Code and Article I, Sections 1, 6, 11 and 26 and Article V, Section 10(c) of the Pennsylvania Constitution. 56. Plaintiff's claim [or punitive damages constitutes an unwarranted and unconstitutional injection of principles of criminal law into this civil action without the constitutional - 8 - safeguards, inter alia, of the burden of proof beyond a reasonable doubt, freedom from double jeopardy, a defined standard f)r punishment and a limit thereto, and by reason of the foregoing, are an unconstitutional basis for the taking of Defendant's property without due process of law. 57. Plaintiff's Complaint fails to state a claim for which punitive damages may be recovered. 58. Plaintiff's claim for punitive damages cannot be sustained because an award of such exemplary relief, without proof of every element beyond a reasonable doubt, would violate Defendant's due process rights under the Fourteenth Amendment to the United States Constitution and under the provisions of the Pennsylvania Constitution. Alternatively, unless Defendant's liability for punitive damages and the appropriate amount of such damages are required to be established by clear and convincing evidence, any award of punitive damages would violate Defendant's due process rights guaranteed by the Fourteenth Amendment to the United States Constitution and by the provisions of the Pennsylvania Constitution. 59. Plaintiff's claim for punitive damages cannot be sustained because any award for punitive damages under Pennsylvania law, without bifurcating the trial of all punitive damages issues, would violate Defendant's due process right guaranteed by the Fourteenth Amendment of the United States Constitution and the due process provisions of the Pennsylvania Constitution. - 9 - 60. Plaintiff's claim for punitive damages cannot be sustained because an award of punitive damages under Pennsylvania law subject to no predetermined limit, such as a maximum multiple of compensatory damages or a maximum amount of punitive damages which a jury may impose, would violate Defendant's due process rights guaranteed by the Fourteenth Amendment tn the United States Constitution and by the due process provision of the Pennsylvania Constitution. 61. Plaintiff's claim fo" punitive damages cannot be sustained because an award of punitive damages under Pennsylvania law by a jury that (a) is not provided with a standard of sufficient clarity for determining the appropriateness of the appropriate size of a punitive damage award (b) is not instructed on the limits of punitive damages imposed by the applicable principles of deterrence in punishment (c) is not expressly prohibited from awarding punitive damages, in whole or in part, on the basis of invidiously discriminatory characteristics, including the corporate status of Defendant (d) is permitted to award punitive damages under a standard for determining lability for punitive damages as vague and arbitrary and does not define with sufficient clarity the conduct or mental state that makes punitive damages permissible and (e) is not subject to judicial review on the basis of objective standards would violate Defendant's due process and equal protection rights guaranteed by the Fourteenth Amendment to the Untied States constitution and the double jeopardy clauses of the Fifth Amendment as incorporated into the Fourteenth - 10 - Amendment and by the Pennsylvania constitutional provisions pertaining to due process, equal protection and guarantee against double jeopardy. 62. Plaintiff'J claim for punitive damages cannot be sustained because an award of punitive damages under Pennsylvania law for the purpose of compensating Plaintiff for elements of damages is not otherwise recognized by Pennsylvania law and would violate Defendant's due process rights guaranteed by the Fourteenth Amendment to the United States Constitution and by the due process provisions of the Pennsylvania Constitution. 63. Plaintiff's claim for punJ.tive damages cannot be sustained because an award of punitive damages under Pennsylvania law, without the same protection that is accorded criminal defendants, including protection against unreasonable searches and seizures, double jeopardy and self-incrimination and the rights to confront adverse witnesses, a speedy trial and the effective assistance of counsel, would violate Defendant's rights under the Fourteenth Amendment to the United States Constitution and the Fourth, Fifth and Sixth Amendments as incorporated into the Fourteenth Amendment and the Pennsylvania Constitution provisions providing for due process and the rights to confront witnesses, speedy trial, effective assistance of counsel, protection against unreasonable searches and seizures, double jeopardy and compelled self-incrimination. 64. Any award of punitive damages based on anything other than Defendant's conduct in connection with the specific act that - 11 - is the subject of this litigation would violate the due process clauses of the Fourteenth Amendment to the United States Constitution and the double jeopardy clause of the Fifth Amendment, as incorporated into the Fourteenth Amendment, and the Pennsylvania constitutional provision providing for due process and against double jeopardy; and any other judgment for punitive damages in this case cannot protect Defendant against impermissible multiple punishment for the same alleged wrong. CROSS-CLAIM DEFENDANT, KAY CASSIDY V. HEARST CORPORATION 65, The averments of Paragraph No. 1 through No. 64 are incorporated herein and made a part hereof as if set forth in full. 66. Answering Lefendant incorporates the averments of Plaintiff's Complaint without adopting same as true. 67. The extent the averments of Plaintiff's Complaint are true, Defendant, Hearst Corporation, is solely liable, liable over to answering Defendant, or jointly and severally liable with answering Defendant, any and all liability of answering Defendant is denied and proof is demanded at time of trial. 68. To the extent the averments of Plaintiff's Complaint is true, Hearst Corporation is liable over to answering Defendant for indemnification, WHBRBPORB, answering Defendant requests this Honorable Court to find the Hearst Corporation solely liable, jointly or severally liable, liable over to answering Defendant, or liable to Defendant for indemnification, - 12 - ", ..... ..,. a. f.; L .'; I ,. -. ~', ; , , IT::, ,;... .:] ~: , '.:) , . , .. [t'1: . ~ ~. p ) .,' I"".. I , : t, l/-} J , U .. , .,) S. In January 1994, Cassidy's foster child, John, creatcd a snow sculpture of a grccn dinosaur sitting on a fallen snowman. (Compl. ~ 10; Ex. I). 6. John crcatcd the snow sculpturc in the front yard of thc Cassidy homc. (Com pI. ~ 10). 7. John's foster mothcr, Ms, Cassidy, causcd a photograph to be creatcd ofthc snow sculpture which she submittcd to R~dhll()k pursuant to the Snowman Contcst solieitutioll, (Compl. ~~ 11,14). 8. In addition to thc snow dinosaur fcaturcd in the photograph submittcd by Ms. Cassidy, fivc individuuls were also picturcd. (Compl. ~ 14; Ex. I), 9. Thc photograph fcutured Ms. Cassidy, un adult male, the husband of Ms. Cassidy, and thrce children. Two ofthc childrcn werc the Cassidy's foster children, John and EmOlY. (Compl. ~ 14; Ex. I). 10. At the time the photograph was takcn, John and Emory had Iivcd with the Cassidys for nearly six (6) years. (Compl. ~~ 5, 6, 10). II. In hcr submittal to Redbook, Ms. Cassidy identified herself as the mother of John and Emory as well as the other child featured in the photograph, Michael. (Compl. ~ IS). 12. In the December 1995 issue of Good Housekeeping, another Hearst publication, photographs of the winning entries in the Redbook Snowman Contest were featured in a two-page, Iightheartcd article fcaturing a total of 10 photographs, (Compl. ~~ 18, 20; Ex. 2). 13. The photograph that had been submitted by Ms. Cassidy was featured in the December 1995 issue of Good lfOlmkeeping. (Compl. ~ 20; Ex. I), -2- 21. In light of the subject matter of the article and the express representation by Ms. Cassidy that she was the mother of the children featured in the photograph, (Com pI. ~ 15), Hearst had no duty to investigate the birth anceslry of the children in the photograph. 22. Because Hearst did not act negligently as a matter of law, Plaintitfs Complaint is legally insufficient, and Defendant Hearst is entitled to a dismissal on Counts I and II. B. The Article Is Not "or And ConcernlnJ:" Plaintiff 23. Paragraphs I through 22 arc incorporated by reference as if fully set forth herein. 24. To state a cause of action for defamation and/or false light invasion of privacy, Plaintiff must establish that the article was "of and concerning" her. 25. The article and accompanying photo make UQ reference :0 Ms. Firestone, and a reasonable reader could not conclude that the article referred in any way to Plaintiff or her parental relationship with her children. 26. Because the article is not "of and concerning" Plaintiff, Plaintiffs Complaint is legally insufficient, and Defendant Hearst is entitled to a dismissal of Counts I and II. C. The Publication Was True 27. Paragraphs I through 26 are incorporated by reference as if fully set forth herein. 28. Truth is an absolute defense to a civil action for defamation and false light invasion of privacy. 29. The caption to the photograph in the December 1995 issue of Good Housekeeping magazine contains no false statement. -4- 30. The term "family" as used in common parlance, defined in dictionaries and interpreted by courts has a broad and comprehensive meaning. A family is a collective body of persons living in one household 1.:l1der one head. 31. The term "family" includes foster children. 32. Because Plaintiff's sons, John and Emory, had lived in the Cassidy home (after being judicially-placed) for nearly six (6) years being raised by the Cassidys, these two children were members of "the Cassidy family." 33. Because the caption to the photograph in the December 1995 issue of Good Housekeeping is true, Defendant Hearst is entitled to a dismissal of Counts I and II of Plaint ill's Complaint because they are legally insufficient. D. The Public9ti/Jn Complained Orh Not Capahle or A DeramatolJ' Meaninl: 34. Paragraphs I through 33 arc incorporated by reference as if fully set forth herein. 35. Before a plaintiff can proceed with a cause of action for defamation, a court must determine in the first instance whether or not the communication at issue is capable of the defamatory meaning plaintiff alleges. 36. Although six million copies of the Good Housekeeping magazines were published, the only relevant audience in this case are those few "acquaintances" of the Plaintiff who Plaintiff claims read the December 1995 issue. (Com pI. ~ 23). 37. Nothing in the publication complained of (Ex. I hereto) is capable ofa defamatory meaning ee it cannot be reasonably read as being capable oflowering Plaintill's reputation in the community. -5- . - 'J"'; ,; l' j""-",,,-,') ,.........,. \~fj: .J,'___":" >,'" :\' ,:J ,- . '"i-;,.rl;iFi;j ,1 ~ _:1 " ,l,_,;:;'f);\ ,.":..l.:C-, ',jr " ... 't.' ...'f".' ..,..~:,:r.i':;"l:r!'b ., .~'t;.(;{;:));~r" . ~~\,,:. 'I,~I,..,,'I'; ...~' ....'f ._,;.\:;'I':~'>:'-':t.:-\f';- , .. .. _ :.-\:._.ff~,;i',~..~,;~--~\~" .\ ~}1~':~1 ~\i:;1t~~.~~:: .. , V. 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"",I" . i' ~ " , DOROTHY FIRESTONE, Plaintiff , Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 1996-3190 Civil Term CIVIL ACTION - LAW JURY TRIAL DEMANDED v. THE HEARST CORPORATION and KAY CASSIDY, h~NDED COMPL~ NOW comes Plaintiff Dorothy Firestone by and through the undersigned attorney and brings this Complaint, and in support thereof avers as follows: 1. Plaintiff Dorothy Firestone (Ms. Firestone) is an adult individual resident in York County, Pennsylvania. 2. Defendant Kay Cassidy (Mrs. Cassidy) is an adult individual resident in Cumberland County, Pennsylvania at 38 Center Drive, Camp Hill, PA 17011. 3. Mrs. Cassidy is married to and lives with Michael Cassidy (Mr. Cassidy) with whom she has a son Michael Cassidy, Jr. (Michael) who also lives with them. 4. Defendant The Hearst Corporation (Good Housekeeping or Redbook) is a Delaware corporation with a principal place of business in the state of New York at 959 Eighth Avenue, New York, NY 10019-3795. 5. Ms. Firestone has two sons, John Firestone (John) born September 16, 1975 and Emory Firestone (Emory) born JUly 15, 1986. 6. In 1988, John and Emory were adjudicated to be dependent juveniles and placed in foster care with Mr. and Mrs. Cassidy. 1 7. .10hn remained placed with Mr, and Mrs. Cassidy until his graduation from high school in May 1994, 8. Emory remained placed with Mr. and Mrs. Cassidy until ordered by the court to be returned to his mother in August 1994. 9. At no time were Ms. Firestone's parental rights in either John or Emory terminated. 10. In January 1994, John created a snow sculpture of a dinosaur (snow dinosaur) in the yard at Mr. and Mrs. Cassidy's house. 11. Various pictures were caused by Mrs. Cassidy to be taken of the snow dinosaur with John, Emory, herself, and others. 12. Defendant The Hearst Corporation publishes a monthly magazine known as Redbook. 13. The December 1994 issue of Redbook announced a contest soliciting photographs involving snow sculptures, 14. Mrs. Cassidy entered the contest and submitted a photograph of the snow dinosaur with herself, Mr. Cassidy, Michael, John and Emory. 15. In submitting this photograph, Mrs. Cassidy identified herself to Redbook as the mother of John and Emory, as well as Michael. 16. Although knowing she is not the mother of John and Emory, Mrs. Cassidy so identified herself intentionally. 17. Redbook judged the photograph submitted by Mrs. Cassidy to be a winner of its contest, 18, Defendant The Hearst Corporation also pUblishes a monthly magazine known as Q~ousekeepinq. 2 19. Good Housekeepinq is a magazine of good repute each issue of which is pUblished in excess of six million copies nationwide. 20. The photograph submitted by Mrs. Cassidy was published in the December 1995 issue of Good Housekeepinq. 21. The December 1995 issue of Good Housekeeping identified John, Mrs. Cassidy, Emory, Mr. Cassidy, and Michael as "the Cassidy family of Camp Hill, PA." 22. The individuals pictured in Good Housekeepinq do not comprise "the Cassidy family" for John and Emory are not the children of Mr. and Mrs. Cassidy. 23. Acquaintances of Ms. Firestone who read the December 1995 issue of Good Housekeepinq understood the identification of the picture to refer to Plaintiff and to mean that her parental rights in John and Emory had been terminated. COUNT I - DEFAMATION 24. Paragraphs 1 - 23 are hereby incorporated by reference as if set out in full herein. 25. The December 1995 issue of Good Housekeepinq falsely implied that Ms. Firestone's parental rights in John and Emory had been terminated. 26. The false implication that Ms. Firestone's parental rights in John and Emory had been terminated was defamatory. 27. The Hearst Corporation and Mrs. Cassidy jointly caused to be published this defamation of Ms. Firestone. 28. Mrs. Cass idy knew that she is not the mother of John and 3 Emory. 29. Mrs. Cassidy knew that identifying this group as "the Cassidy family of Camp Hill, PA" was false and that it would defame Ms. Firestone. 30. The Hearst Corporation acted outrageously and in reckless disregard as to the falsity of the identification of John and Emory and the defamation of Ms. Firestone if Mrs. Cassidy identified John and Emory as foster children. 31. The Hearst Corporation acted negligently as to the falsity of the identification of John and Emory and the defamation of Ms. Firestone by not verifying the identities of those whose picture and identification it published. 32. Mrs. Cassidy and the Hearst Corporation acted jointly in publishing to this photograph and identifying the individuals as "the Cassidy family of Camp Hill, PA." 33. As a result of this defamatory publication, Ms. Firestone suffered harm to her reputation. 34. As a result of this defamatory publication, Ms. Firestone suffered emotional distress. WHEREFORE, Plaintiff respectfully prays this Honorable Court to order Defendants Kay Cassidy and The Hearst Corporation jointly and severally to pay to the Plaintiff damages, including puni tive damages, in an amount in excess of the jurisdictional amount requiring arbitration referral by local rule and order any other relief as the court deems appropriate, together with allowable 4 attorney fees, interest, and costs. COUNT II - PUBLICITY PLACING A PERSON IN FALSE LIGHT 35. Paragraphs 1 - 34 are hereby incorporated by reference as if set out in full herein. 36. The December 1995 issue of Good Housekeepinq falsely implied that Ms. Firestone's parental rights in John and Emory had been terminated. 37. The December 1995 issue of !lQ9d Housekeepinq placed Ms. Firestone in a false light. 38. The Hearst Corporation and Mrs, Cassidy jointly gave publicity to this matter placing Ms. Firestone in a false light. 39. Mrs. Cassidy knew that she is not the mother of John and Emory. 40. Mrs, Cassidy knew that identifying this group as "the Cassidy family of Camp Hill, PA" was false and that it would place Ms. Firestone in a false light. 41. The Hearst Corporation acted in reckless disregard as to the falsity of the identification of John and Emory and the false light in which Ms. Firestone was placed. 42. Mrs. Cassidy and the Hearst Corporation acted jointly in giving publicity to this photograph and identifying the individuals as "the Cassidy family of Camp Hill, PA," 43. It is highly offensive to a reasonable person to have a national magazine publish a picture of one's children identified as someone else's family. 5 -., ,... . - (' " (, : i , , ~" ; ). ; , ' ( [;: j ,," " cJ\ 1 8, 1 '" -" n I,J (.i" l" 1- ..., (' , ':~ ) C! C . ) Cassidys until he left for service in the United States Army in September of 1994. 8. Admit ted. 9. Admitted. 10. Denied as stated. A snow sculpture of a dinosaur was created with the joint efforts of Mrs. Cassidy, John, and Emory. 11. It is admitted that pictures of the snow dinosaur, with John, Emory and Mrs. Cassidy and others were taken. 12. Denied. Answering Defendant is without information or belief as to the truths of the averments in Paragraph No. 12, hence it is denied and proof is demanded at time of trial. 13. Admitted in part. It is admitted that Redbook initiated a contest soliciting photographs of snow sculptures. Any and all of the averments of Paragraph No. 13 are denied and proof is demanded at time of trial. 14. Admitted in part. It is further averred that Mrs. Cassidy also submitted several other photographs of just the dinosaur for consideration in the contest. 15. Denied. It is denied that Mrs. Cassidy at any time identified herself as the mother of John and Emory. 16. Denied. It is denied that Mrs. Cassidy identified herself as the mother of John and Emory. - 2 - 17. It is admitted that Good HousekeeOing judged the photographs submitttld by Mrs. Cassidy to be the winner of the contest. Any and all contrary averments are denied and proof is demanded at time of trial. 18. Denied. Answering Defendant is without information or belief as to the truths of the averments in Paragraph No. 18, hence it is denied and proof is demanded at time of trial. 19. Denied. Answering Defendant is without information or belief as to the truths of the averments in Paragraph No. 19, hence it is denied and proof is demanded at time of trial. 20. Admitted in part. It is admitted that Good Housekeeoinq selected one of the four photographs submitted by Mrs. Cassidy for publication in the December 1995 issue of Good Housekeeoing. 21. Denied as stated. It is admitted that Good Housekeeoinq, in its December 1995 issue, states, "below, another cool winner, by the Cassidy family of Camp Hill, PA, who made a snowdinosaur that sat on Frosty after a 'monstrous' snowstorm." It is denied that Emory or John are specifically identified by name, or are identified as being members of the Cassidy family themselves. 22. Denied. Answering Defendant is without information or belief as to the truths of the averments in Paragraph No. 22, hence it is denied and proof is demanded at time of trial. - 3 - 23. Denied. Answering Defendant is without information or belief as to the truths of the averments in Parag~aph No. 23, hence it is denied and proof is demanded at time of trial. COUNT I - DEFAMATION DOROTHY FIRESTONE V. THE HEARST CORPORATION AND KAY CASSIDY 24. Paragraphs No.1 through No. 23 of Defendant's Answer is incorporated herein and made a part hereof as if set forth in full. 25. Denied. It is denied that the December 1995 issue of Good Housekeeoinq falsely implied that Ms. Firestone's parental rights in John and Emory had been terminated. 26. Denied. Any and all allegations and implication that Ms. Firestone's parental rights in John and Emory had been terminated is denied. It is denied that any statements in the publication, and/or made by Mrs. Cassidy were false or defamatory. 27. Denied. It is denied that the Hearst Corporation and Mrs. Cassidy jointly caused to be published any defamation of Ms. Firestone. Any and all allegations of defamation are denied and proof is demanded at time of trial. 28. Denied as stated. Mrs. Cassidy was the foster mother of John and Emory. - 4 - 29. Denied. It is denied that Mrs. Cassidy identified the group as "the Cassidy family of Camp Hill, PA." It is denied that Mrs. Cassidy made any statements as alleged in the Complaint that were false or defamatory ".s to Ms. Firestone. Any and all allegations that the statements made by Mrs. Cassidy were false and or defamatory is denied and proof is demanded at time of trial. 30. Denied. The averments of Palagraph No. 30 state a conclusion of law to which no responsive pleading is required. In the alternative, the averments are directed to a party other than answering Defendant. Any and all allegations that Mrs. Cassidy made a defamatory or false statement is denied and proof is demanded at time of trial. 31. Denied. The averments of Paragraph No. 31 state a conclusion of law to which no responsive pleading is required. In the alternative, the averments are directed to a party other than answering Defendant. Any and all allegations that Mrs. Cassidy made a defamatory or false statement is denied and proof is demanded at time of trial. 32. Denied. It is denied that Mrs. Cassidy acted jointly with the Hearst Corporation and/or published the photograph, or identified the individuals as "the Cassidy family of Camp Hill, PA." Any and all allegations of defamation are denied. - 5 - 33. Denied. Answering Defendant is without information or belief as to the truths of the averments in Paragraph No. 33, hence it is denied and proof is demanded at time of trial. Any and all allegations of defamation are denied. 34. Denied. Answering Defendant is without information or belief as to the truths of the averments in Paragraph No. 34, hence it is denied and proof is demanded at time of trial. WHEREPORE, Defendant requests this Honorable Court to dismiss Plaintiff's Complaint. COUNT II - PUBLICITY PLACING A PERSON IN FALSE LIGHT DOROTHY FIRESTONE V. THE HEARST CORPORATION AND KAY CASSIDY 35. Paragraphs No.1 through No. 34 of Defendant's Answer is incorporated herein and made a part hereof as if set forth in full. 36. Denied. It is denied that the December 1995 issue of Good Housekeeoinq falsely implied that M9. Firestone's parental rights in John and Emory had been terminated. 37. Denied. It is denied that the December 1995 issue of Good Housekeeoinq placed Ms. Firestone in a false light. 38. Denied. It is denied that Mrs. Cassidy, individually or jointly with the Hearst Corporation, gave publicity to this matter or placed Ms. Firestone in a false light. - 6 - 39. Denied as stated. Mrs. Cassidy was the foster mother of John and Emory. 40. Denied. It is denied that Mrs. Cassidy identified the group as "the Cassidy family of Camp Hill, PA." It is denied that any statements made by Mrs. Cassidy were false and/or placed Ms. Firestone in a false light. 41. Denied. The averments of Paragraph No. 41 state a conclusion of law to which no responsive pleading is required. In the alternative, the averments are directed to a party other than answering Defendant, hence it is denied and proof is demanded at time of trial. 42. Denied. It is denied that Mrs. Cassidy acted jointly with the Hearst Corporation and/or identified the individuals as "the Cassidy family of Camp Hill, PA." 43. Denied. The averments of Paragraph No. 43 are denied and proof is demanded at time of trial. It is specifically denied that Mrs. Cassidy identified the group as "the Cassidy family." 44. Denied. Answering Defendant is without information or belief as to the truths of the averments in Paragraph No. 44, hence it is denied and proof is demanded at time of trial. 45. Denied. It is denied that any action or statement by Mrs. Cassidy caused Ms. Firestone to be seriously offended and/or - 7 - aggrieved. Any and all other averments of Paragraph No. 45 are denied and proof is demanded at time of trial. 46. Denied. Answering Defendant is without information or belief as to the truths of the averments in Paragraph No. 46, hence it is denied and proof is demanded at time of trial. 47. Denied. Answering Defendant is without information or belief as to the truths of the averments in Paragraph No. 47, hence it is denied and proof is demanded at time of trial. 48. Denied. Answering Defendant is without information or belief as to the truths of the averments in Paragraph No. 48, hence it is denied and proof is demanded at time of trial. 49. Denied. Answering Defendant is without information or belief as to the truths of the averments in Paragraph No. 49, hence it is denied and proof is demanded at time of trial. WHEREFORE, Defendant requests this Honorable Court to dismiss Plaintiff's Complaint. HgW MATTER By way of additional answer and reply, Defendant raises the following New Matters: 50. Plaintiff has failed to state a claim, including but not limited to, for defamation and or false light publicity. 51. Plaintiff's claims for defamation are barred by the truth of the statements made by Defendant, Kay Cassidy. - 8 - 52. Plaintiff's claims are barred by Defendant, Kay Cassidy's immunity to the extent they are made with regard to activiti.es while she was in the service of Children and Youth Services. 53. Plaintiff's claims are barred as any statements by Defendant, Kay Cassidy, were privileged to the extent they were made while she was in the service of Children and Youth Services. 54. Some or all of Plaintiff's claim may be barred by the statute of limitations. 55. Plaintiff's claim for punitive damages is violative of the due process and equal protection clauses of the Fourteenth Amendment to the Constitution of the Unites States Section 1983 Title 42 of the United States Code and Article I, Sections 1, 6, 11 and 26 and Article V, Section 10(c) of the Pennsylvania Constitution. 56. Plaintiff's claim for punitive damages constitutes an unwarranted and unconstitutional injection of principles of criminal law into this civil action without the constitutional safeguards, inter slis, of the burden of proof beyond a reasonable doubt, freedom from double jeopardy, a defined standard for punishment and a limit thereto, and by reason of the foregoing, are an unconstitutional basis for the taking of Defendant's property without due process of law. - 9 - 57. Plaintiff's Complaint fails to state a claim for which punitive damages may be recovered. 58. Plaintiff's claim for punitive damages cannot be sustained because an award of such exemplary relief, without proof of every element beyond a reasonable doubt, would violate Defendant's due p~ocess rights under the Fourteenth Amendment to the United States Constitution and under the provisions of the Pennsylvania Constitution. Alternatively, unless Defendant's liability for punitive damages and the appropriate amount of such damages are required to be established by clear and convincing evidence, any award of punitive damages would violate Defendant's due process rights guaranteed by the Fourteenth Amendment to the United States Constitution and by the provisions of the Pennsylvania Constitution. 59. Plaintiff's claim for p~nitive damages cannot be sustained because any award for punitive damages under Pennsylvania law, without bifurcating the trial of all punitive damages issues, would violate Defendant's due process right guaranteed by the Fourteenth Amendment of the United States Constitution and the due process provisions of the Pennsylvania Constitution. 60. Plaintiff's claim for punitive damages cannot be sustained because an award of pun~tive damages under Pennsylvania law subject to no predetermined limit, such as a maximum multiple - 10 - of compensatory damages or a maximum amount of punitive damages which a jury may impose, would violate Defendant's due process rights guaranteed by the Fourteenth Amendment to the United States Constitution and by the due process provision of the Pennsylvania constitution. 61. Plaintiff's claim for punitive damages cannot be sustained because an award of punitive damages u~der Pennsylvania law by a jury that (a) is not provided with a standard of sufficient clarity for determining the appropriateness of the appropriate size of a punitive damage award (b) is not instructed on the limits of punitive damages imposed by the applicable principles of deterrence in punishment (c) is not expressly prohibited from awarding punitive damages, in whole or in part, on the basis of invidiously discriminatory characteristics, including the corporate status of Defendant (d) is permitted to award punitive damages under a standard for determining lability for punitive damages as vague and arbitrary and does not define with sufficient clarity the conduct or mental state that makes punitive damages permissible and (e) is not subject to judicial review on the basis of objective standards would violate Defendant's due process and equal protection rights guaranteed by the Fourteenth Amendment to the Untied States constitution and the double jeopardy clauses of the Fifth Amendment as incorporated into the Fourteenth - 11 - Amendment and by the Pennsylvania constitutional provisions pertaining to due process, equal protection and guarantee against double jeopardy. 62. Plaintiff's claim for punitive damages cannot be sustained because an award of punitive damages under Pennsylvania law for the purpose of compensating Plaintiff for elements of damages is not otherwise recognized by Pennsylvania law and would violate Defendant's due process rights guaranteed by the Fourteenth Amendment to the United States Constitution and by the due process provisions of the Pennsylvania Constitution. 63. Plaintiff's claim for punitive damages cannot be sustained because an award of punitive damages under Pennsylvania law, without the same protection that is accorded criminal defendants, including protection against unreasonable searches and seizures, double jeopardy and self-incrimination and the rights to confront adverse witnesses, a speedy trial and the effective assistance of counsel, would violate Defendant's rights under the Fourteenth Amendment to the United States Constitution and the Fourth, Fifth and Sixth Amendments as incorporated into the Fourteenth Amendment and the Pennsylvania Constitution provisions providing for due process and the rights to confront witnesses, speedy trial, ef:ective assistance of counsel, protection against - 12 - unreasonable searches and seizures, double jeopardy and compelled self-incrimination. 64. Any award of punitive damages based on anything other than Defendant's conduct in connection with the specific act that is the subject of this litigation would violate the due process clauses of the Fourteenth Amendment to the United States Constitution and the double jeopardy clause of the Fifth Amendment, as incorporated into the Fourteenth Amendment, and the Pennsylvania constitutional provision providing for due process and against double jeopardy; and any other judgment for punitive damages in this case cannot protect Defendant against impermissible multiple punishment for the same alleged wrong. CROSS-CLAIM DEFENDANT. KAY CASSIDY V. HEARST CORPORATION 65. The averments of Paragraph No. 1 through No. 64 are incorporated herein and made a part hereof as if set forth in full. 66. Answering Defendant incorporates the averments of Plaintiff's Complaint without adopting same as true. 67. The extent the averments of Plaintiff's Complaint are true, Defendant, Hearst Corporation, is solely liable, liable over to answering Defendant, or jointly and severally liable with answering Defendant, any and all liability of answering Defendant is denied and proof is demanded at time of trial. - 13 - .... '-:1' 6: ..... " ~, u-: ..: ; ~':; ('1 '; I' :--: '-' !. ..~ <oj ~l:" ,:O) '.-] "- C" , fi.:\" C.', ,,'.l) ~.: ;:.;: ~l.'- 'L '0 .-) () c.. d li i 1!\'" (,"1: CL" I'. CJ: , L",- \_!"j, ll~ ....- (0 L:. .' c; C' I' < .' r-: '. L. ~ ~ t; .. 9 ... 0 ~ '" 1: ~ .. " VI i .. " .. '" Z II oS ~ Q 0 M '" 0 '" ~ ... " :> " ~ 'E % ,; VI .. '" ~ ~ t'i ~ 0 '" z ~ ..~ VI 0 ~ '" Q ~