
    Brubaker, Appellant, v. Reading Eagle Company.
    
      Argued April 20, 1966.
    Before Bell, C. J., Musmanno, Jones, Cohen, Eagen, O’Brien and Roberts, JJ.
    
      Robert Levin, with him Frederick O. Brubaker, and Levin, Levin and Stock, for appellant.
    
      John R. McConnell, with him Arthur Littleton, John D. Clase, Charles H. Weidner, and Morgan, Lewis <& Bockius, and Stevens & Lee, for appellee.
    June 24, 1966:
   Opinion by

Mr. Justice Cohen,

While Frederick Brubaker, appellant, was District Attorney of Berks County certain articles appeared in the Reading Times, a newspaper published by the Reading Eagle Company, appellee, severely criticizing appellant’s performance of the functions of his office. Alleging that various of the statements were libelous, appellant instituted an action in the lower court and obtained a substantial verdict. Pending determination of appellee’s motions for judgment non obstante veredicto or a new trial, the United States Supreme Court decided the case of New York Times Co. v. Sullivan, 376 U.S. 254 (1964). On the authority of that decision, the court en banc entered an order granting judgment n.o.v.

Sullivan, supra, has greatly changed the law of defamation in the political context. The doctrines there set forth have been developed in subsequent litigation. See, Garrison v. Louisiana, 379 U.S. 64 (1964); Rosenblatt v. Baer, 383 U.S. 75, 15 L. Ed. 2d 597 (1966); and Linn v. United Plant Guard Workers, 383 U.S. 53, 15 L. Ed. 2d 582 (1966).

Therefore, considering the knowledge of the law that the attorneys and the trial court had at the time of trial, it is impossible to find either that the relevant factual matters were attempted to be proved or that crucial issues were charged upon. Neither can we find as a matter of law that appellant satisfied the requisites of his cause of action under Sullivan or that, were a new trial to be granted, he could not do so.

In the very recent case of Rosenblatt v. Baer, supra at 87-88, the United States Supreme Court held: “. . . if the claim falls within New York Times, the record suggests respondent may be able to present a jury question of malice as there defined. Because trial here was had before New York Times, we have concluded that we should not foreclose him from attempting retrial of his action.” We agree with this language and so hold here.

Appellant, in addition to requesting a new trial, also asks that we find as a matter of law that the statements sued upon were defamatory and that they applied to him. We, however, have determined that fairness to the parties requires a remand of the case on all issues.

Finally, appellant argues that several of the articles defamed him as a private citizen, and that, therefore, Sullivan does not apply. Because of the chronology of the case with regard to Sullivan, there was no opportunity to present this question to the lower court and therefore no determination was made in the court below. Since the court below will be able to pass upon the question on remand, we do not believe it is properly here for decision now.

Judgment vacated and new trial granted.  