On appeal from Superior Court of New Jersey, Law Division, Camden County, L-8387-98.
Before Judges Keefe, Eichen and Steinberg.
The opinion of the court was delivered by: Steinberg, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Plaintiff Sally Starr Gray appeals from an order granting summary judgment in favor of defendants Press Communications, L.L.C., Jeff Diminski, and Leigh Jacobs. The order resulted in the dismissal of the complaint for defamation that she had filed against them. We reverse.
In support of their motion for summary judgment, defendants filed a biographical profile of plaintiff. According to that profile, plaintiff began her entertainment career, in radio, in the 1940's. She served as the regional voice of the Pepsi-Cola Company doing all of its commercial spots. Eventually, she commenced performing on radio full-time. In 1950, she commenced hosting a children's television program in Philadelphia.
The show lasted through 1972, and featured cartoons, live acts, as well as personal appearances from Roy Rogers, Dale Evans, Dick Clark, Jerry Lewis, Tim Conway, Jimmy Durante, Nick Adams, the Three Stooges, and others. At her deposition, she said she also completed one personal appearance per day, and up to three such performances on Saturdays. In addition, she said at her deposition that in the early 1980's, she re-entered the personal appearance market, after she had moved back to the Delaware Valley area from Florida, and began to make appearances on behalf of businesses and charities. Moreover, she said she participated in various community organizations. For example, she was on the Board of Directors of what she referred to as a "No-Kill Animal Shelter" as well as the Alzheimer's Foundation. She also said she did appearances for the Children's Miracle Network, Manna, which was described as an organization that served meals at home to people suffering from AIDS. She also did personal appearances for the AIDS Foundation. Additionally, she has appeared on behalf of many charitable organizations.
She also stated that she appeared in the Philadelphia Gay Pride Parade, where her participation was limited to riding on the back of a convertible and waving to people. Additionally, she made several paid appearances at an outdoor festival in Philadelphia, held in connection with the Gay Pride festivities.
At the time of the incident that gave rise to this litigation, defendant Jeff Diminski was the co-host of an afternoon, call-in radio program, on FM 101.5, a New Jersey radio station. Press Communication, LLC, was the licensee of 101.5. Jacobs was the program director.
At his deposition, Diminski said the program was "largely, while topical and newsie, very entertainment driven." He defined entertainment driven as "[n]on-political, not so much serious debate of issues, non-public affairs, more humor-based." He and his co-host, Bill Doyle, operated under guidelines, provided by the station, to appeal to an audience between the ages of twenty-five to fifty-four, and focused their discussion on things that were going on in New Jersey, both out of the news, as well as just life-style things like parking disputes at a New Jersey mall during Black Friday, the day after Thanksgiving. And to do it with an eye toward a younger audience, meaning something fresh, something funny, little edgy, but certainly within certain guidelines. As far as taboo, we were sort of told, a dead end street was never to talk about gun control or abortion and it's getting much more public affairs kind of thing.
On July 24, 1998, the show was centered on children's television programs and callers were asked to discuss their childhood, or name their children's favorite shows. The transcript of the relevant portions of the program that gave rise to this lawsuit, which was furnished to the motion judge, reveals that a person named Sally called in to give the name of her two favorite shows, and the following exchange occurred:
SALLY:Two shows, Sally Starr Show.
DIMINSKI: That was the lesbian ...