DiPaolo, D. v. Times Publishing ( 2016 )

J-A04011-16
2016 PA Super 125DOMINICK D. DIPAOLO, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TIMES PUBLISHING COMPANY, D/B/A
ERIE TIMES NEWS, CYBERINK, LP, D/B/A
GOERIE.COM, LISA THOMPSON,
EDWARD PALATELLA JR., AND MICHAEL
MACIAG,
Appellants No. 1713 WDA 2014
Appeal from the Order October 10, 2014
In the Court of Common Pleas of Erie County
Civil Division at No(s): 14004-2011
BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., and SHOGAN, J.
DISSENTING OPINION BY SHOGAN, J.: FILED JUNE 15, 2016
Because I am of the opinion that neither Thompson’s notes on the
November 10, 2010 hearing nor the reporters’ spreadsheet are crucial to
Judge DiPaolo’s case, I respectfully dissent.
The qualified First Amendment [reporter’s] privilege
protects members of the news media from divulging their
sources, including unpublished information. See United States
v. Cuthbertson, 630 F.2d 139, 147 (3d Cir.1980); Riley v. City
of Chester, 612 F.2d 708, 714-15 (3d Cir.1979). This privilege,
designed to protect freedom of the press by insuring a free flow
of information to reporters, will be overcome only where a
demonstrated, specific need for evidence presents a paramount
interest to which the privilege must yield. Riley v. City of
Chester, supra at 715-716 (citing United States v. Nixon,
418 U.S. 683, 713 (1974)). The determination of whether the
privilege has been overcome must be made on a case-by-case
basis, balancing the rights of reporters under the First
Amendment against the interests of those seeking the
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information the reporters possess. Id.; McMenamin v.
Tartaglione, 590 A.2d 802, 811 (Pa. Cmwlth. 1991). This
balancing of interests will tip in favor of disclosure of information
where: 1) the information sought is material, relevant and
necessary; 2) there is a strong showing that it cannot be
obtained by alternative means, and 3) the information is crucial
to the plaintiff’s case. Riley v. City of Chester, supra at 716-
717; McMenamin v. Tartaglione, supra.Davis v. Glanton, 705 A.2d 879, 885 (Pa. Super. Ct. 1997).
The trial court ordered production of the notes taken by Thompson on
the Unicredit court hearing of November 10, 2010, before Judge Dunlavey.
Thompson had reported on this hearing in two articles, one published on
November 11, 2010, and one published on November 14, 2010. As noted by
the learned Majority, Judge DiPaolo filed a three-count complaint averring
“libel with respect to a series of print and online articles and blogs published
on November 14, 2010; November 28, 2010; April 16, 2011; and April 17,
2011.” Majority Opinion, at 1. Thus, the November 11, 2010 article, which
paraphrased Judge Dunlavey’s “I am certain” comment at the hearing as
“likely” in the article, was not cited as a basis for Judge DiPaolo’s libel
claims. In fact, Judge DiPaolo averred that Thompson’s November 11, 2010
article was “a fair report of the proceedings and did not in any way intimate
or suggest that Judge Dunlavey questioned Judge DiPaolo’s practices in the
proceeding.” Amended Complaint, 12/28/11, at ¶ 57. Accordingly,
Thompson’s notes for the November 11, 2010 article are not crucial to
Judge DiPaolo’s case.
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The trial court also ordered the production of an unpublished
spreadsheet prepared by reporters Palatella and Maciag. The spreadsheet
purportedly contained collected data and analysis of the hundreds of
Unicredit cases filed in Judge DiPaolo’s court, some of which were from
outside of Judge DiPaolo’s jurisdiction. According to Judge DiPaolo, the
April 17, 2010 article “ran a purportedly ‘in-depth’ report on Judge Dipaolo’s
office and the Unicredit cases, titled: “Judge’s cases from outside district,’”
suggesting that his handling of the Unicredit cases was improper because
some of the debtors were not located in his ward and because he had
familial relationships with some of the debtors and Unicredit’s president.
Amended Complaint, 12/28/11, at ¶¶ 92, 99, 101, 102. Judge DiPaolo
further averred that the challenged April 17, 2010 article was “published
within a month before the primary elections, in which Judge DiPaolo was
running for reelection both the Republican and Democratic ticket.” Amended
Complaint, 12/28/11, at ¶ 95.
As Appellants contend, Judge DiPaolo did not assert that the
spreadsheet contained inaccurate or defamatory information. Appellants’
Brief at 23. Thus, its relevance is unproven. Moreover, Judge DiPaolo has
not provided any showing—let alone a strong one— that he could not obtain
by alternative means the data purportedly contained in the spreadsheet
concerning cases filed in his own office. Finally, Judge DiPaolo has failed to
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demonstrate how the spreadsheet is crucial to a defamation claim based on
the April 17, 2010 article. Davis, 705 A.2d at 885.
Accordingly, I respectfully dissent.
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