concurring:
I agree with Judge CAVANAUGH’s conclusion that the order granting appellees’ motion for summary judgment should be affirmed, but I arrive at that conclusion by somewhat different reasoning.
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In Curran v. Philadelphia Newspapers, Inc., 261 Pa.Super. 118, 395 A.2d 1342 (1978), an examination of the principles established by New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), and its progeny led to the following conclusion:
Applying these principles here, we conclude as follows: When a public official sues a newspaper for defamation, *605the court must on a motion for summary judgment make a threshold inquiry into actual malice: Unless the court finds on the basis of pretrial affidavits, depositions, and documentary evidence that the plaintiff can prove actual malice in the New York Times sense, it should grant summary judgment for the defendant. Bon Air Hotel, Inc. v. Times, Inc., [426 F.2d 858 (5th Cir. 1970)]; Wasserman v. Time, Inc., [424 F.2d 920 (D.C. Cir. 1970)] (WRIGHT, J., concurring). It is not enough for the plaintiff, in resisting summary judgment, to argue that there is a jury question as to malice; he must make a showing of facts from which malice may be inferred. Thompson v. Evening Star Newspaper Co., 129 U.S.App.D.C. 299, 394 F.2d 774 (1968). Accord, Oliver v. Village Voice, Inc., 417 F.Supp. 235 (S.D.N.Y. 1976), Meeropol v. Nizer, 381 F.Supp. 29 (S.D.N.Y. 1974). See also Bandelin v. Pietsch, 563 P.2d 395 (Idaho, 1977), cert. denied, 434 U.S. 891, 98 S.Ct. 260 [266], 54 L.Ed.2d 177 (1977). Such an inference must be clear. Cf. New York Times Co. v. Sullivan, supra.
261 Pa.Super. at 129-30, 395 A.2d at 1348 (opinion in support of affirmance, SPAETH, J., joined by VAN der VOORT, J., CERCONE, J., concurring in the result).
I see no reason to retreat from this conclusion. Judge CAVANAUGH has taken issue with it in two respects, and my first reason for offering this opinion is to explain why I am not persuaded by what he says.
a-
The first respect in which Judge CAVANAUGH takes issue with the conclusion expressed in Curran is that it “appears to vary from the normal summary judgment procedure [in that] [t]he trial court is not required to view the evidence in the light most favorable to the non-moving party ....” At 631. This interpretation of Curran is mistaken. I accept responsibility for the mistake, since I wrote the statement quoted by Judge CAVANAUGH; plainly, it was not as clear as it should have been. Let me therefore try again.
*606In Curran it is said that “[ujnless the court finds on the basis of pretrial affidavits, depositions, and documentary evidence that the plaintiff can prove actual malice in the New York Times sense, it should grant summary judgment for the defendant.” 261 Pa.Super. at 129, 395 A.2d at 1348. This does not say-as Judge CAVANAUGH supposes-that the court is to view the “pretrial affidavits, depositions, and documentary evidence” in some light other than the light most favorable to the plaintiff as the non-moving party. To the contrary, the assumption in Curran was that the court would view the material before it in the light most favorable to the plaintiff, just as in any other summary judgment case.
That this was the assumption in Curran is apparent from the cases there cited, which were Bon Air Hotel, Inc. v. Time, Inc., supra, and Wasserman v. Time, Inc., supra (WRIGHT, J., concurring). In Bon Air the court could not have been clearer, stating its test as follows:
We thus proceed to our examination of the record, viewing it and the inferences which might be drawn therefrom in the light most favorable to [the plaintiff], to ascertain whether “the record established by [the plaintiff] demonstrate^] that there is no issue of fact from which a jury could find ‘actual malice.’ ”
426 F.2d at 865 (footnotes omitted) (emphasis added).
In Wasserman, in voting for summary judgment, Judge WRIGHT invited the reader to compare that case with Goldwater v. Ginzburg, 414 F.2d 324 (2nd Cir. 1969). The difference between the two cases is this: When the evidence was viewed in the light most favorable to the plaintiff in Goldwater, there was sufficient evidence to support a finding of actual malice with convincing clarity; in Wasserman, there was not. In this regard it should be noted that the court in Goldwater expressly distinguished Washington Post Co. v. Keogh, 365 F.2d 965 (D.C. Cir. 1966), cert. denied, 385 U.S. 1011, 87 S.Ct. 708, 17 L.Ed.2d 548 (1967), in which the opinion was written by Judge WRIGHT, who viewed the plaintiff’s pre-trial material in its “broadest possible signifi-*607canee,” i. e., in the light most favorable to the plaintiff, before ruling that it was insufficient to warrant the denial of the defendant’s motion for summary judgment. Id. at 971.
In short: Bon Air, Wasserman, and Washington Post, cited with approval in Curran, are all cases in which the evidence was viewed in the light most favorable to the plaintiff as the non-moving party. In all of them, the evidence, so viewed, was insufficient to support a finding of actual malice with convincing clarity. In Goldwater, in contrast, the evidence, so viewed, was sufficient to support a finding of actual malice with convincing clarity. Curran belongs with Bon Air, Wasserman, and Washington Post, and not with Goldwater, for the evidence in Curran when viewed in the light most favorable to the plaintiff as the non-moving party was insufficient to support a finding of actual malice with convincing clarity-at least, it was thus insufficient in the opinion of three of six judges of this court.
-b
The second respect in which Judge CAVANAUGH takes issue with the conclusion expressed in Curran is that it “appears ... [to hold that] the trial court must make an initial determination as to whether the plaintiff can establish actual malice with convincing clarity.” At 631. Of course, on every motion for summary judgment the trial court must make an initial determination as to whether the plaintiff can prove his case. If Judge CAVANAUGH means that under Curran this initial determination must be made on any basis other than the evidence as viewed in the light most favorable to the plaintiff, I hope that it is clear from what has been said above that that is not so. I think, however, that the judge means more than that. As I read his opinion, he is critical of the statement in Curran that in a case involving the first amendment, “summary judgment is a preferred procedure.” 261 Pa.Super. at 127, 395 A.2d at 1346. However, I remain persuaded that the statement is sound.
*608The question is, “In what sense is summary judgment a ‘preferred procedure?’ ” As explained above, it is not a preferred procedure in the sense that the trial court should view the evidence in a light any less favorable to the non-moving party than the light in which the court views the evidence in a summary judgment case not involving the first amendment; in all summary judgment cases, whether or not the first amendment is involved, the court must view the evidence in the light most favorable to the non-moving party. However, in my opinion, after the court has so viewed the evidence, it should act differently in a summary judgment case involving the first amendment than in an ordinary summary judgment case. It is this difference that leads to the statement that in a case involving the first amendment, summary judgment is a preferred procedure.
In the ordinary case the court will refrain from entering summary judgment if there is the least doubt. Schaffer v. Larzelere, 410 Pa. 402, 403-08, 189 A.2d 267 (1963); Bollinger v. Palmerton Area Communities Endeavor, Inc., 241 Pa. Super. 341, 361 A.2d 676 (1976). In other words, in an ordinary summary judgment case the burden of the plaintiff (if the plaintiff is the non-moving party) is very slight; it is easy to avoid entry of summary judgment. See, e. g., Couts v. Ghion, 281 Pa.Super. 135, 421 A.2d 1184 (1980). However, in a case involving the first amendment the burden of the plaintiff is heavier-not enormously heavier but nevertheless definitely heavier. In such a case, as was said in Curran, to avoid entry of summary judgment “[i]t is not enough for the plaintiff ... to argue that there is a jury question as to malice; he must make a showing of facts from which malice may be inferred [citations omitted]. Such an inference must be clear [citation omitted].” 261 Pa.Super. at 129-30, 395 A.2d at 1348 (emphasis added). The way this difference works may be seen by reference to some of the cases cited in Curran.
In Time, Inc. v. Hill, 385 U.S. 374, 87 S.Ct. 534, 17 L.Ed.2d 456 (1967), a magazine article said that a new play was a “re-enactment” of an experience suffered by the plaintiff *609and his family. As described in the article, the experience was marked with violence and the family had been harassed. However, the author of the article had in his file news clippings revealing that the experience had in fact been non-violent and that the book-the source of the play-was based on various other incidents as well as on the incident in which the plaintiff and his family had been involved. It is not difficult to see that when this evidence was viewed in the light most favorable to the plaintiff, it offered what the Court characterized as “reasonable support” for a finding of actual malice in the New York Times sense. Whether there was malice was therefore a question for the jury, not for the court. 385 U.S. at 394 n. 11, 87 S.Ct. at 545 n. 11. The same was so in Cantrell v. Forest City Publishing Co., 419 U.S. 245, 95 S.Ct. 465, 42 L.Ed.2d 419 (1974), where the article in question created at least one egregiously false impression by describing an interview that in fact never occurred. The same was also so, it may be noted, in Goldwater v. Ginzburg, supra, which, while not cited in Curran, might have been. There one article purported to be based on a poll that the authors of the article knew was unprofessional and the results of which the authors had distorted, while the other article characterized the plaintiff as “paranoid” without any factual basis and, moreover, purported to support this characterization by statements for which the authors could offer no support.
Thus in all of these cases-Time, Cantrell, and Goldwater -the plaintiff was able to point to “facts” which made it “clear” that a jury could reasonably find malice in the New York Times sense. However, in Curran -again, in the opinion of three judges-this was not so. There the plaintiff could point to some facts, to be sure, but not to enough facts to constitute reasonable support for a clear finding of malice in the New York Times sense. See in particular the discussion in Curran in 261 Pa. Super, at 133-36, 395 A.2d at 1350-1351, and at 137-38, 395 A.2d at 1352, explaining why the facts cited by the plaintiff were tangential only, and why when examined in light of all the facts it was apparent, *610on the best view of his case, that the plaintiff had done no more than merely allege malice instead of offering reasonable support for a clear finding of malice.
I recognize that a plaintiff may very well resent a rule that makes it more difficult to avoid entry of summary judgment in a case involving the first amendment than in an ordinary case; such a “preferred procedure,” he may feel, prefers the defendant-defamer to him. And indeed it does. The preference, however, is a deliberate one, and is based on considerations that I find compelling and that I should be most reluctant to see abandoned. These considerations have been fully stated in many cases, which are cited in Curran. It is enough to say here that someone afraid of being harassed by a lawsuit will tend to hold his tongue; only if we require the plaintiff, when resisting a motion for summary judgment, to make a showing of facts that offer reasonable support for a clear finding of malice will we “lessen the possibility that a jury will use the cloak of a general verdict to punish unpopular ideas or speakers. . . . ” Rosenblatt v. Baer, 383 U.S. 75, 88 n.15, 86 S.Ct. 669, 677 n.15, 15 L.Ed.2d 597 (1966).
In saying this I am aware of the footnote in Hutchinson v. Proxmire, 443 U.S. 111, 120 n.9, 99 S.Ct. 2675, 2680 n.9, 61 L.Ed.2d 411 (1979), quoted by Judge CAVANAUGH. At 631. However, I regard the effect of this footnote as speculative at best. The footnote did not articulate what “doubt” was felt, nor why, nor what different rule should be applied; it expressly stated that the issues involved in deciding upon a different rule were not before the court. For me, it would take much more than such a footnote to “cast in doubt” either the “vitality” of the cases or the power of the considerations that I have discussed. Furthermore, if the footnote is indeed the first signal for a soon-to-be-executed retreat by the United States Supreme Court, I shall not join the procession. We are always able to permit greater freedom in this Commonwealth than do the federal courts. See e. g., Commonwealth v. Triplett, 462 Pa. 244, 341 A.2d 62 (1975) (refusal to follow limitations on exclusion*611ary rule expressed by the United States Supreme Court in Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971)). Other states have also found their state constitutions to provide their citizens with greater protection than the federal courts have found in similarly worded federal constitutional provisions. See e. g., Baker v. City of Fairbanks, 471 P.2d 386 (Alaska 1970) (right to jury trial even in petty offenses); People v. Disbrow, 16 Cal.3d 101, 127 Cal.Rptr. 360, 545 P.2d 272 (Cal. 1976) (refusal to follow exclusionary rule limitation of Harris v. New York, supra); People v. Brisendine, 13 Cal.3d 528, 531 P.2d 1099, 119 Cal.Rptr. 315 (1975) (refusal to follow limiting rule established in United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973); Burrows v. Superior Ct., 13 Cal.3d 238, 529 P.2d 590, 118 Cal.Rptr. 166 (1974) (finding contrary to federal law that individuals have reasonable expectation in privacy of their bank records); State v. Santiago, 53 Haw. 254, 492 P.2d 657 (1971) (Hawaii Constitution excludes evidence of past convictions for purposes of impeachment to insure defendant’s right to testify will not be chilled); State v. Sklar, 317 A.2d 160 (Me., 1974) (Maine Constitution requires trial by jury even in petty offenses); People v. Jackson, 391 Mich. 323, 217 N.W.2d 22 (1974) (state constitution provides greater right to assistance of counsel than federal constitution); State v. Johnson, 68 N.J. 349, 346 A.2d 66 (1975) (New Jersey Supreme Court found, sua sponte, identically phrased provision of New Jersey Constitution provided greater showing of consent for warrantless search than is required by the United States Supreme Court interpreting the fourth amendment of federal constitution). See also Brennan, State Constitutions and the Protection of Individual Rights, 90 Harv.L.Rev. 489 (1977); Falk, The Supreme Court of California 1971-1972, Foreword: The State Constitution: A More Than “Adequate” Nonfederal Ground, 61 Calif.L.Rev. 273 (1973); Howard, State Courts and Constitutional Rights in the Day of the Burger Court, 62 Va.L.Rev. 873 (1976); Wilkes, The New Federalism in Criminal Procedure: State Court Evasion of the Burger Court, 62 *612Ky.L.J. 421 (1974); Wilkes, More on the New Federalism in Criminal Procedure, 63 Ky.LJ. 873 (1975).
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The essence of appellants’ argument is the following contention, which appears in their Summary of the Argument:
[Appellants] contend that the newspaper article and headline in suit would give the average reader the impression that some of the citizens of the City of Pottsville believed that [appellants] intentionally conspired to kill the son of the Police Chief because of a vendetta between Police Commissioner Brophy and the deceased boy’s father.
Appellants’ Brief at 4.
Initially, several comments may be offered by way of defining the exact issue we must decide. The article and headline do not say that appellants either intentionally conspired to kill or did kill the son of the Police Chief. In their complaint, however, appellants alleged that “[t]he many buyers and readers” of the Philadelphia Inquirer “understood and derived the meaning” from the article and headline that “[appellants] did, in fact, pursuant to a conspiracy, ambush and intentionally and unjustifiably kill” the son of the Police Chief. Complaint, para. 17, Record at 6a. Appellants have now abandoned this claim. As their Summary of the Agrument shows, they now claim only that the article and headline gave “the impression that some of the citizens of the City of Pottsville believed [not that the many readers and buyers of the Inquirer believed] that [appellants] intentionally conspired to kill [not also, and did in fact kill] the son of the Police Chief.”1
It is by no means clear to me that appellants should be permitted thus to shift their ground. The lower court was obliged to decide whether to grant the motion for summary *613judgment on the cause as pleaded. By shifting their ground on appeal, appellants appear to have conceded that the lower court was right in deciding that they could not prove their cause as pleaded. Why then should we, on appeal, in effect allow appellants to amend their complaint and argue that when the depositions and other pretrial material are read in the light of the complaint as amended, the conclusion follows that the motion for summary judgment should not have been granted? I do not think we should, for it cannot be said that the lower court erred in granting the motion when the only argument against the motion is that if the complaint had been different, the motion should not have been granted. When a plaintiff is met with a motion for summary judgment, he must decide whether his complaint can withstand the motion. If it will not, he must amend the complaint, so that either the motion is withdrawn or, if persisted in, is denied. A plaintiff should not be permitted to take the chance that the trial court will deny the motion, and then, if he loses that chance, on appeal make the argument that he would have made if he had amended his complaint.
I do not wish, however, to rest my decision on this point of practice, sufficient though I believe it to be. Since both Judge CAVANAUGH and Judge HESTER have considered the case on the merits, I shall too.
Why do appellants contend that the article and headline “would give the average reader the impression that some of the citizens of the City of Pottsville believed that [appellants] intentionally conspired to kill the son of the Police Chief?” Appellants emphasize the use of four words in particular. In their Summary of the Argument they identify three of these words, as follows:
[Appellees’] use of the words “vendetta,” “conspiracy” and that the shooting was “no accident” in the article and headline conveyed the distorted and false impression that some of the citizens believe that [appellants] intentionally conspired to kill the youth.
Appellants’ Brief at 5.
*614Elsewhere in their brief, appellants emphasize the use of the word “ambush.” Appellants’ Brief at 7.
Since the contention made concerns the impression given by the article and headline, the entire article and headline must be examined. The entire headline is: “A Killing in Pottsville: Reform or Vendetta?” The article that follows may be summarized as follows:
The article opens by stating that the 16 year old son of the Pottsville Chief of Police had been shot to death by. a Pottsville police officer, who is later identified in the article as Patrolman Charles Charlesworth. The article says that the “police say [the youth] was about to commit a robbery.” The fourth paragraph of the article says:
What is even more remarkable about the shooting is that there are people in this town who suggest that it was no accident. They say it was the logical, albeit extreme, extension of a dispute that has been tearing the 30-man police department apart for 18 months.
The article goes on to quote the attorney for the Chief of Police as saying, “It was an ambush.” The article then proceeds to give several accounts, tending to weave them together, and shifting back and forth among them.
One account pertains to the robbery. It is said that the State Police got a telephone tip about just where, when and how the robbery would occur, and that the son of the Chief of Police would be one of the robbers; that the Police Commissioner thereupon assembled three police officers and he and the officers planned a stakeout; that the robbery started much as the tipster had said it would; and that according to the Police Commissioner, “who was there but says he did not see the shooting itself,”
young Quirk [the son of the Chief of Police] spotted Patrolman Charlesworth in the trees and told the others .... Quirk had a shotgun. He reportedly turned toward Charlesworth and pulled back the action of the gun as if to sock it. Charlesworth fired his own shotgun, hitting Quirk in the head.
*615Authorities said that Quirk’s shotgun was not loaded and that no ammunition was found on the scene. .. .
It is also said that the State Police and local district attorney are investigating the shooting and expect to report to a coroner’s inquest.
Another account pertains to the Police Commissioner and the relationship between him and the Chief of Police. Generally, it is said that the Commissioner is an outsider who has been trying to reform the police force, and that the Chief is an old-timer. The Commissioner is quoted as saying that some of the old-timers are “so treacherous”, that “[w]hen we need a gambling bust, I call in the State Police. I can’t use my own men.” He is said to “see[] himself as a man who has tried to bring professionalism to our out-moded and resistant police department.” “Critics” are said to see the Commissioner “as an impersonal dictator who has destroyed police morale and channeled all decision-making power to himself.” It is said that “[t]he old-timers on the police force resent the changes [made by the Commissioner]”, that “a lot of them want to get rid of him,” that “[b]efore the record is closed in the strange case of Stephen Quirk, the old-timers may get their way,” and that the Commissioner “is not optimistic about his future in Potts-ville,” although he “says he would like to stay and continue the work he has started.”
Another account pertains to various reactions to the shooting. One person is quoted as saying that the shooting “was long overdue. It’ll cut down on all the gaddamn [sic] nonsense going on around here. The kid deserved it.” Most of the other reactions reported are reported as critical. One person is quoted as saying, “Christ, give the kid a chance.” Another is quoted as saying: “It was Brophy [the Commissioner] and three of his handpicked men who went out there. It’s just my opinion, but there has to be more to this.” Just before this last quotation it is said:
The other talk-the talk of a conspiracy-focuses not on Patrolman Charlesworth, the man who apparently pulled the trigger, but on Police Commissioner William Brophy, *616who planned the police action that ended in the fatal shooting.
Also, it is said:
In retrospect, many Pottsville residents wonder why the police didn’t stop the youngsters as soon as they climbed up the hill, or why they didn’t place a patrol car in the restaurant parking lot to scare them off and prevent the crime. “Why did they decide to play Kojak?” McMana-man [the manager of the restaurant when the attempted robbery occurred] asked.
Immediately after this paragraph another person is quoted as. saying “That’s the new commissioner. They (the cops) were looking for trouble. A lot of people don’t like that man.”
Finally, in the course of describing the incident, the article gives some conflicting accounts. It is said that according to the Police Commissioner, “his first move” after he was tipped off about the robbery was to call the Chief of Police but that the Chief was not home. It is then said that the Chief’s lawyer says that except for half an hour at most the Chief was home and that “no real effort was made to alert him of what was about to happen to his son.” The Commissioner’s decision to go with the officers on the stakeout is characterized as “a highly unusual move.” The Commissioner is quoted as responding to this criticism by saying, “Yes, it’s unusual for me to go out on a case. But robbery is an unusual crime for Pottsville,” and that “[h]e said he took the men he felt he could trust.” Immediately after this it is said that “[b]esides failing to contack Chief Quirk, Brophy also did not let the employees of the restaurant know they were about to be robbed, Michael McManaman, the restaurant manager said.”
In my opinion, .this case is squarely within the rule stated in Curran, in the opinion in support of affirmance, and in the cases there cited. In other words: When the article and headline are read in the light most favorable to appellants, still, they do not constitute reasonable support for a clear finding by a jury of malice in the New York Times sense. *617Accordingly, the lower court properly granted appellees’ motion for summary judgment.
As noted, appellants emphasize the words “vendetta,” “ambush,” “conspiracy,” and “that it [the shooting] was no accident.”
Appellants quote Webster as defining “vendetta” to mean
1. A feud in which the relatives of a murdered or wronged person seeks vengeance on the wrongdoer or members of his family
2. Any bitter quarrel or feud.
The article did indeed, plainly and at some rather considerable length, describe a bitter quarrel or feud between the Police Commissioner and the “old-timers,” including the Chief of Police. However, nothing suggests that the description was inaccurate.
Appellants quote Webster as defining “ambush” to mean 1. An agreement of persons in hiding to make a surprise attack. 2. a) the persons in hiding b) their place of hiding. 3. The act of so lying in wait to attack.
Again, the article did describe an ambush-a police stakeout of an attempted robbery-but nothing suggests that the description was inaccurate.
Appellants quote Webster as defining “conspiracy” to mean
1. A planning and acting together secretly, especially for an unlawful or harmful purpose, such as murder or treason. 2. The plan agreed on; plot. 3. The group taking part in such a plan. 4. A combining or working together.
I agree that when read in the light most favorable to appellants, the article may be read as describing a conspiracy. The question is, “What sort of conspiracy?” I think it plain that the answer is, “A conspiracy by the Police Commissioner and some of his men to catch the son of the Chief of Police red-handed in the attempt to commit a robbery.” I also think it plain that the article and headline may be read as saying that this conspiracy arose from, or was part of, or incident to, a vendetta between the Commissioner, on *618the one hand, and the Chief of Police and other old-timers, on the other hand, and that at least one purpose, perhaps even the principal purpose, of the conspiracy was not so much to catch the youth as to embarrass the Chief of Police and the other old-timers and thereby take vengeance on them for their resistance to the Police Commissioner’s attempt to reform-as the Commissioner saw it-the police department. I see no basis, however, for reading the article as saying that the Police Commissioner conspired with his men to murder the youth. The article quite specifically precludes any such interpretation. Thus it is said that Patrolman Charlesworth only shot the youth after the youth “reportedly turned toward Charlesworth and pulled back the action of the gun as if to sock it.”
Finally, there are the words that “it [the shooting] was no accident.” If nothing else had been said, perhaps when read in the light most favorable to appellants, these words might be read as meaning, “It was no accident; it was a deliberate killing.” However, when read in context, it is plain, in the light most favorable to appellants, that the words mean, “It was no accident but the result to be expected when a dictatorial Police Commissioner, bent on taking vengeance on his rival, engages in a clumsy, dangerous, and unnecessary stakeout.”
At this point it is necessary to recall that appellants have shifted their ground. As noted above, in their complaint appellants alleged that “[t]he many buyers and readers” of the Inquirer would read the article and headline as meaning “That [appellants] did, in fact, pursuant to a conspiracy, ambush and intentionally and unjustifiably kill” the son of the Chief of Police. Now that the article and headline have been examined, with attention to the words that appellants especially complain of, it may be seen why the lower court was correct in granting appellees’ motion for summary judgment, and why appellants have shifted their ground to argue to us, not that the article means they conspired to kill, and did kill, but that it “give[s] the average reader the impression that some of the citizens of the City of Pottsville *619believed that [appellants] intentionally conspired to kill the son of the Police Chief because of a vendetta between Police Commissioner Brophy and the deceased boy’s father.” Appellants’ Brief at 4. However, appellants’ new argument is no better than their old. If the article and headline cannot be read as meaning that the Police Commissioner conspired to kill, they cannot give the average reader the impression that some of the citizens of the City of Pottsville believed the Commissioner conspired to kill. It is true that the article says that “there are people in this town who suggest that it [the shooting] was no accident,” but as we have seen, this cannot be read-at least it cannot be read in context -as saying that “there are people in this town who suggest that the shooting was a deliberate killing.”
Appellants, however, urge upon us the fact that the author of the article said in his deposition that in fact there was one person in town, a construction worker, who did say the shooting was a deliberate killing. Appellants’ Brief at 22.2 I do not see how this helps appellants. The author also said that he did not believe the construction worker, and that because he did not, he did not quote him in the article. (Eichel Deposition, Record at 154a.) It may be granted that if the author had quoted the construction worker, despite the fact that he did not believe him, perhaps a jury might find malice; but no basis for a finding of malice exists where the author did not quote the construction worker, nor otherwise give the impression that someone had said that the shooting was a deliberate killing rather than the result of a bitter feud and poor police work.3
*620In summary then: The very most that can be said for appellants’ case is that if someone were to read the words that the shooting “was no accident,” without reference to all else that was said, he might jump to the conclusion that some “people in this town [Pottsville]” believed the shooting was deliberate. Such a case, I submit, is not strong enough to withstand a motion for summary judgment. It is not enough for the jplaintiff to show some facts. He must show enough facts to constitute reasonable support for a clear finding of malice in the New York Times sense. See Curran (opinion in support of affirmance) and the cases there cited. Here, when all of the evidence is examined, in the light most favorable to appellants, it cannot be maintained that a jury could discover any reasonable support for a finding of malice.
For the foregoing reasons, I agree that the order of the lower court should be affirmed.
. It may be noted that apparently some of the citizens of Pottsville did in fact believe that appellants had intentionally conspired to kill the son of the Police Chief. See L. Eichel Dep. at 100; R. 154a (identifying two persons who apparently so believed). Thus it would seem that if the article and headline did give the impression that appellants claim they did, the defense of truth might be interposed.
. There appear to have been two such persons. See footnote 1, supra.
. I recognize that the present case is not typical. In the typical case, the defendant has published an article that makes a false statement, and the plaintiff contends that the defendant either knew his “facts” to be false or published them without caring about their possible falsity; there is usually no dispute about what the publication actually said. Here, appellants and appellees have different interpretations of the same article. Appellants argue that the article is defamatory in that it gives the impression that some of the citizens of Pottsville believed that they conspired to kill the son of the Chief of Police. *620Appellees argue that they never intended to give such an impression; appellees seem to concede that an article that did give such an impression would be false. But see footnote 1, supra. Thus we are presented with a preliminary question of whose interpretation of the article should control. The existence of this preliminary question, however, does not mean that this case should be decided differently from the typical case. We still must decide whether appellants have shown enough facts to constitute reasonable support for a clear finding of malice.