PHILADELPHIA – A libel lawsuit brought by a Philadelphia firefighter against the New York Daily News, earlier dismissed by the U.S. Court of Appeals for the Third Circuit in February, has officially been listed for re-argument next week before the same panel of judges who decided the case.

On June 2, Third Circuit Court Clerk Marcia M. Waldron advised all members of counsel that the lawsuit was scheduled for oral argument on the merits on Tuesday, June 21 in the Albert Branson Maris Courtroom, located at the James A. Byrne Federal Courthouse on Market Street in Philadelphia.

Per the rehearing rules, each party’s counsel will be allotted 15 minutes of oral argument time. Third Circuit judges presiding over this new hearing are D. Michael Fisher, Michael A. Chagares and Maryanne Trump Barry, the last of whom will be participating via audio conference.

The following day, appellant counsel James P. Goslee and appellee counsel Michael L. Berry filed official acknowledgements of the rehearing date and for their participation in the proceedings.

Appellant Francis X. Cheney had first 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 argued 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.”

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 the following month.

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.

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

The appellee is represented by 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