DiPaolo, D. v. Times Publishing

J. A04011/16
2016 PA Super 125DOMINICK D. DiPAOLO : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
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, : No. 1713 WDA 2014
:
Appellants :
Appeal from the Order, October 10, 2014,
in the Court of Common Pleas of Erie County
Civil Division at No. 14004-2011
BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., AND SHOGAN, J.
OPINION BY FORD ELLIOTT, P.J.E.: FILED JUNE 15, 2016
Appellants, Times Publishing Company, d/b/a Erie Times News
(“Times”); Cyberink, LP, d/b/a GoErie.com (“Cyberlink”); Lisa Thompson
(“Thompson”); Edward Palatella Jr. (“Palatella”); and Michael Maciag
(“Maciag”) appeal from the October 10, 2014 order entered in the Court of
Common Pleas that granted the motion to compel of appellee, Dominick D.
DiPaolo (“Judge DiPaolo”). We affirm.
The record reflects that Judge DiPaolo, a magisterial district judge,
filed a three-count complaint alleging 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. Times and
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Cyberlink are business entities that publish the Erie Times News
newspaper and GoErie.com, an online newspaper. These business entities
employ the individual appellants Thompson, Palatella, and Maciag as
reporters, journalists, writers, and/or bloggers.
The events that gave rise to this appeal took root on October 28,
2010, when the Office of the Pennsylvania Attorney General
(“Attorney General”) initiated an action against Unicredit America
Incorporated (“Unicredit”), an Erie-based debt-collection company. The
complaint alleged that Unicredit engaged in certain debt-collection activities
that violated various Pennsylvania consumer-protection laws, as well as the
Pennsylvania Rules of Civil Procedure. The Attorney General also averred
that Unicredit improperly filed numerous civil actions in Judge DiPaolo’s
magisterial district office and then obtained judgments against most of the
defendant debtors. The Attorney General further alleged that in an attempt
to pressure the defendant debtors to satisfy judgments, Unicredit conducted
fake post-judgment proceedings in a fake courtroom presided over by a fake
judge.
Court proceedings in the Unicredit case took place before Erie County
Court of Common Pleas Judge Michael E. Dunlavey on November 2, 2010
and November 10, 2010. Those proceedings resulted in significant press
coverage, including articles published in the Erie Times News and on
GoErie.com. It was the publication of those articles that caused
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Judge DiPaolo to file his three-count defamation complaint, which he later
amended, against the appellants.
Count I of Judge DiPaolo’s amended complaint alleges libel against
appellants Times, Cyberlink, Palatella, and Thompson for the following
statements written by Palatella and Thompson and published by Times and
Cyberlink in print and online on November 14, 2010:
a. “Probe of Erie debt collector Unicredit widens;”
b. “Federal agents, Dunlavey and even one of
Unicredit’s former clients have taken notice of
the information surfacing in the case, which
according to what Dunlavey said in court, could
include a look at the practices in the office of
Erie 6th Ward District Judge Dominick DiPaolo;”
and
c. “The chief counsel of the State Supreme
Court’s Judicial Conduct Board, Joseph J.
Massa Jr., declined to comment on whether
violations cited by Dunlavey would be
investigated.”
Amended complaint in civil action, 12/28/11 at 23-24, ¶¶ 137-138 (Docket
#11).
Judge DiPaolo alleged that these statements harmed his reputation
because they explicitly state or suggest that the Unicredit probe was
widened to include Judge DiPaolo and that Judge Dunlavey had stated in
court that Judge DiPaolo could and/or should be investigated for his role in
that case by either Judge Dunlavey himself, the Attorney General’s office,
federal agents, or the Judicial Conduct Board. (Id. at 24, ¶ 139).
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Judge DiPaolo further alleged that Judge Dunlavey never stated that
Judge DiPaolo could, would, or should be the target of an investigation and
that Judge Dunlavey only stated that he defended Judge DiPaolo’s actions
and that he believed that Judge DiPaolo’s office had relied on Unicredit’s
representation. (Id. at 24, ¶ 140.)
Judge DiPaolo averred that the November 14, 2010 published
statements were made with actual malice because (i) Thompson and/or
Palatella attended the November 10, 2010 hearing and heard what
Judge Dunlavey said; (ii) appellant Thompson and/or Palatella subsequently
reviewed the November 10, 2010 hearing transcript and read what
Judge Dunlavey said; (iii) a November 11, 2010 article written by Thompson
accurately summarized the November 10, 2010 court proceeding;
(iv) Thompson and/or Palatella admitted that they reviewed the Judicial
Conduct Board’s website and knew that that board investigates judges for
alleged unethical or illegal conduct; (v) Thompson and/or Palatella reviewed
the Unicredit case docket and knew no other hearing occurred after the
November 10, 2010 proceeding and November 14, 2010, the date the article
was published. (Id. at 25, ¶ 142(a)-(g).)
Count II of Judge DiPaolo’s amended complaint alleges libel against
Times, Cyberlink, Thompson, and Palatella for statements written by
Thompson and Palatella and published by Times and Cyberlink in print and
online on November 28, 2010, and then subsequently republished in articles
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written by Thompson and Palatella and dated December 13, 2010;
December 21, 2010; December 22, 2010; and February 9, 2011. The
following allegedly defamatory statements were published after a hearing
before Judge Dunlavey on Unicredit’s motion for reconsideration for
post-trial relief on November 22, 2010:
a. the headline “Legal Ruling Questioned,
Unicredit Lawyer: Debt collector, judge not
involved with Kickback;”
b. The statement that “Dunlavey said it appeared
Unicredit established a ‘ghost system of justice’
by first obtaining judgment against debtors in
the wrong venue – mainly Erie 6th Ward
District Judge Dominick DiPaolo’s office – and
then using those judgments and sham court
proceedings in Unicredit’s offices to extract
payments from debtors;” and
c. The unfair republication of [Unicredit’s
Attorney Krista] Ott’s defamatory, but
judicially privileged, statement that “there is a
kickback scheme involving Unicredit and
Magisterial District Judge DiPaolo’s office” with
additional sting caused by the aforesaid
headline and statement.
Id. at 26-27, ¶ 146(a)-(c).
Judge DiPaolo alleged that these statements were defamatory because
they stated or suggested, and appellants’ readers understood them to mean,
that Judge Dunlavey had issued a ruling that found Judge DiPaolo was
involved in a kickback scheme with Unicredit; that Judge Dunlavey said or
suggested that Judge DiPaolo was involved in Unicredit’s “ghost system of
justice”; and that Judge DiPaolo was actually involved in a kickback scheme
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with Unicredit. (Id. at 27, ¶ 148.) Judge DiPaolo further alleged that
Judge Dunlavey never ruled, found, or otherwise stated or suggested that he
believed that Judge DiPaolo was involved in a kickback scheme with
Unicredit. (Id. at 27-28, ¶ 149.)
Judge DiPaolo averred that the November 28, 2010 published
statements were made with actual malice because, among other things,
Thompson and/or Palatella read and reviewed Judge Dunlavey’s
November 10, 2010 court order, as well as Attorney Ott’s motion for
reconsideration of that order, and one or both of those appellants had
knowledge of the Unicredit case generally, so that they would have known
that the statements published in the November 28, 2010 article were false.
Finally, Count III of Judge DiPaolo’s amended complaint alleges libel
against Times, Cyberlink, Thompson, Palatella, and Maciag for approximately
32 statements written by Thompson and Palatella and published by Times
and Cyberlink in print and online on April 16, 2011 and April 17, 2011,1 that
harmed Judge DiPaolo’s reputation because they stated or suggested, and
their readers understood them to mean:
a. That Judge DiPaolo had intentionally captioned
those Unicredit cases that he heard to conceal
that the creditors and/or debtors in those
cases were out of his jurisdiction;
1
These statements were also alleged to have been published on an April 16,
2011 blog post and on Unicredit’s web page. (Amended complaint in civil
action, 12/28/11 at 29, ¶ 155 (Docket #11).)
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b. That Judge DiPaolo improperly heard cases in
which his relatives were a party;
c. That Judge DiPaolo had extended judicial
favors to Unicredit based on an attenuated
familial relationship;
d. That Judge DiPaolo applied practices in his
office that differed from other Magisterial
District Judges in an improper effort to help
Unicredit;
e. That a Judge had stated that “DiPaolo takes
relatives[’] cases;”
f. That a Judge or the Attorney General had
called Judge DiPaolo’s practices
“unconscionable;” and
g. That Judge DiPaolo had knowledge of a
jurisdictional deficit in the Unicredit-related
cases filed in his office, that he had a duty to
raise that jurisdictional deficit, and that he did
not do so because he was related to one of
Unicredit’s principals.
Id. at 30, ¶ 157.
Judge DiPaolo alleged that Thompson, Palatella, and/or Maciag
intentionally misquoted and/or mischaracterized the proceedings and public
records upon which they based these statements and, therefore, made the
statements with actual malice. (Id. at ¶¶ 158-159.)
During discovery in this case, Judge DiPaolo served interrogatories and
requests for production on appellants. With respect to each alleged
defamatory publication, Judge DiPaolo requested that appellants “[i]dentify
each and every source who provided content used in the article and describe
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the information provided by each source;” “[i]dentify and provide every note
or set of notes reflecting the conversation had between the source identified
[] and the person with whom that source spoke;” and “[i]dentify and provide
any documents referred to in creating the article and state for what content
within the document, if any, relied upon that document in whole or in part.”
(Motion to compel, 4/10/14 Exhibit A (Docket #37).) Appellants objected to
these specific interrogatories and requests for production on the basis of
privilege under the Pennsylvania Shield Law2 and/or the qualified First
Amendment privilege, also known as the journalist’s privilege. Thereafter,
Judge DiPaolo filed his first motion to compel contending, among other
things, that he requested appellants’ notes, unpublished drafts, and
2
§ 5942. Confidential communications to news
reporters.
(a) General rule. --
No person engaged on, connected with,
or employed by any newspaper of
general circulation or any press
association or any radio or television
station, or any magazine of general
circulation, for the purpose of gathering,
procuring, compiling, editing or
publishing news, shall be required to
disclose the source of any information
procured or obtained by such person, in
any legal proceeding, trial or
investigation before any government
unit.
42 Pa.C.S.A. § 5942.
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documents referred to in creating the articles “because those notes, drafts,
and documents are likely to provide insight into the state of knowledge of
the reporters prior to their writing the [a]rticles and the mindset of the
reporters in their writing the [a]rticles.” (Id. at 5, ¶ 25.) Judge DiPaolo
further averred that he “requires this information to meet the actual malice
standard of liability required by the United States Constitution.” (Id. at
¶ 26.) At oral argument on the motion, Judge DiPaolo agreed to narrowly
tailor his discovery requests so that appellants could determine the
applicability of the Shield Law and/or the qualified First Amendment
privilege.
Subsequently, Judge DiPaolo sent a second set of interrogatories and
requests for production to appellants. In response to those interrogatories,
appellants identified notes of appellant Thompson.3 Additionally, during
Palatella’s deposition, Palatella testified as to the existence of a spreadsheet
that he prepared with appellant Maciag that compiled data from public court
records to determine the identity and/or number of debtors sued by
Unicredit who did not live within Judge DiPaolo’s magisterial district.
Thereafter, Judge DiPaolo filed a second motion to compel production of
3
Appellants did not produce appellant Thompson’s notes because, they
contend, Judge DiPaolo did not request them in his second set of
interrogatories and requests for production of documents and DiPaolo did
not establish facts necessary to overcome the journalist’s privilege.
(Defendants’ response in opposition to plaintiff’s motion to compel, 7/28/14
at 3, ¶¶ 12-13 (Docket #49).)
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appellants’ notes, unpublished drafts, and documents referred to in creating
the articles subject to redaction of confidential informants and a privilege
log. The request necessarily includes the notes Thompson took at the
November 10, 2010 hearing, as well the spreadsheet prepared by Palatella
and Maciag. The trial court granted Judge DiPaolo’s motion. This appeal
followed.
Appellants raise two issues for our review:
A. WHETHER THE TRIAL COURT ERRED IN
FINDING THAT, WITH RESPECT TO THE NOTES
PREPARED BY APPELLANT, THOMPSON,
APPELLEE HAD MADE A SHOWING SUFFICIENT
TO OVERCOME THE JOURNALIST’S PRIVILEGE
UNDER THE FIRST AMENDMENT?
B. WHETHER THE TRIAL COURT ERRED IN
FINDING THAT, WITH RESPECT TO THE
REPORTERS’ RESOURCE MATERIALS AND
SPREADSHEET, APPELLEE MADE A SHOWING
SUFFICIENT TO OVERCOME THE JOURNALIST’S
PRIVILEGE UNDER THE FIRST AMENDMENT?
Appellants’ brief at 2-3.
Preliminarily, we note that the order granting Judge DiPaolo’s motion
to compel is appealable as a collateral order.
[I]n general, discovery orders are not final, and are
therefore unappealable. However, discovery orders
involving privileged material are nevertheless
appealable as collateral to the principal action
pursuant to Pa.R.A.P. 313 (“Collateral Orders”).
Rule 313(a) states that “[a]n appeal may be taken
as of right from a collateral order of [a] . . . lower
court.”
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A collateral order is an order separable
from and collateral to the main cause of
action where the right involved is too
important to be denied review and the
question presented is such that if review
is postponed until final judgment in the
case, the claim will be irreparably lost.
Pa.R.A.P. 313(b). A discovery order is collateral only
when it is separate and distinct from the underlying
cause of action.
Generally, discovery orders involving purportedly
privileged material are appealable because if
immediate appellate review is not granted, the
disclosure of documents cannot be undone and
subsequent appellate review would be rendered
moot.
Rhodes v. USAA Casualty, 21 A.3d 1253, 1258 (Pa.Super. 2011), appeal
denied, 119 A.3d 351 (Pa. 2015) (internal case law citations and quotation
marks omitted).
Accordingly, we will review the trial court's order granting
Judge DiPaolo’s motion to compel. See id., quoting Berkeyheiser v.
A-Plus Investigations, Inc., 936 A.2d 1117, 1123-1124 (Pa.Super. 2007)
(“Pennsylvania courts have held that discovery orders involving potentially
confidential and privileged materials are immediately appealable as collateral
to the principal action.”).
Generally, when reviewing the propriety of a discovery order, our
standard of review is whether the trial court abused its discretion. Rhodes,
21 A.3d at 1258 (citations omitted). To the extent that we are presented
with questions of law, our scope of review is plenary. Id.- 11 -
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The discovery order at issue compels the media appellants to produce
documents in Judge DiPaolo’s defamation suit against them.
“Defamation is a communication which tends to
harm an individual’s reputation so as to lower him or
her in the estimation of the community or deter third
persons from associating or dealing with him or her.”
Elia v. Erie Insurance Exchange, 430 Pa.Super.
384, 634 A.2d 657, 660 (1993). Only statements of
fact, not expressions of opinion, can support an
action in defamation. Id. In a defamation case, a
plaintiff must prove: “(1) The defamatory character
of the communication; (2) its publication by the
defendant; (3) its application to the plaintiff; (4) the
understanding by the recipient of its defamatory
meaning; (5) the understanding by the recipient of it
as intended to be applied to the plaintiff; (6) special
harm resulting to the plaintiff from its publication;
and (7) abuse of a conditionally privileged occasion.”
Porter v. Joy Realty, Inc., 872 A.2d 846, 849 n. 6
(Pa.Super. 2005), quoting, 42 Pa.C.S.A. § 8343(a).
See also, Weber v. Lancaster Newspapers, Inc.,
878 A.2d 63 (Pa.Super. 2005).
Moore v. Cobb-Nettleton, 889 A.2d 1262, 1267 (Pa.Super. 2005).
Here, no dispute exists that Judge DiPaolo, as a magistrate, is a public
official or a public figure.
[T]he appropriate standard of fault depends on
whether the plaintiff is a public or private figure. If
the plaintiff is a public official or public figure, and
the statement relates to a matter of public concern,
then to satisfy First Amendment strictures the
plaintiff must establish that the defendant made a
false and defamatory statement with actual malice.
In contrast, states are free to allow a private-figure
plaintiff to recover by establishing that the defendant
acted negligently rather than maliciously.
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American Future Systems, Inc. v. Better Business Bureau of Eastern
Pennsylvania, 923 A.2d 389, 400 (Pa. 2007), cert. denied, 552 U.S. 1076(2007) (citations and parentheticals omitted).
The term “actual malice” (sometimes shortened to
“malice”) is a term of art that refers to a speaker’s
knowledge that his statement is false, or his reckless
disregard as to its truth or falsity. Thus, it implies at
a minimum that the speaker “‘entertained serious
doubts about the truth of his publication,’ . . . or
acted with a ‘high degree of awareness of . . .
probable falsity.’” Masson v. New Yorker
Magazine, 501 U.S. 496, 510, 111 S.Ct. 2419,
2429, 115 L.Ed.2d 447 (1991) (quoting St. Amant
v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323,
1325, 20 L.Ed.2d 262 (1968); Garrison v.
Louisiana, 379 U.S. 64, 74, 85 S.Ct. 209, 216, 13
L.Ed.2d 125 (1964)). This term “should not be
confused with the concept of malice as an evil intent
or a motive arising from spite or ill will.” Id.American Future Systems, Inc. 923 A.2d at 395 n.6.
Here, appellants contend that the trial court erred in ordering
compelled disclosure of Thompson’s notes and the resource materials used
and spreadsheet prepared by Palatella and Maciag because Judge DiPaolo
did not overcome the journalist’s privilege (also known as the qualified First
Amendment privilege) under the First Amendment of the United States
Constitution. We note that despite claiming the potential applicability of the
Pennsylvania Shield Law, 42 Pa.C.S.A. § 5942(a), to these documents in the
proceedings below, appellants advance no such argument on appeal. We
further note that the shield law, unlike the journalist’s privilege, is an
absolute privilege that protects a journalist from compelled disclosure of a
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confidential source. In interpreting the shield law, our supreme court has
held that a plaintiff may discover unpublished documentary information
gathered by the media to the extent that that documentary information does
not reveal the identity of a confidential source. Hatchard v.
Westinghouse Broadcasting Co., 532 A.2d 346, 351 (Pa. 1987). The
purpose of the shield law is to maintain a free flow of information to the
news media. Id.Likewise, the reporter’s privilege was designed to protect freedom of
the press by insuring the free flow of information to reporters. Davis v.
Glanton, 705 A.2d 879, 885 (Pa.Super. 1997) (citation omitted). Thus,
there exists a stark distinction between the need for disclosure of materials
that identify or could lead to the identification of confidential sources from
the need for disclosure of materials created during the editorial process. The
following aptly examines the dichotomy:
In libel actions, the right of a plaintiff to discover into
the editorial process is a distinct issue from
discovery of a journalist’s confidential sources.
Courts have generally protected discovery of
confidential sources because of the effect disclosure
of such sources would have on a journalist’s conduct.
“Disclosure of confidential sources is . . . more
onerous than inquiry into the editorial process in that
it can significantly affect journalistic conduct.”
Marian E. Lindberg, Note, Source Protection In
Libel Suits After Herbert v. Lando, 81 Colum. L.
Rev. 338, 362 (1981). Furthermore, “compelled
disclosure of confidential sources might chill the flow
of information so essential to the freedom and
effectiveness of the press.” Mize v. McGraw-Hill,
86 F.R.D. 1, 4 (S.D. Tex. 1980). This “chilling effect”
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on the free flow of information that discovery may
have impinges on the public’s interest in news
dissemination in contravention of the First
Amendment.
The balance between a plaintiff’s need for disclosure
of either confidential sources or the editorial process,
and the public’s First Amendment interest in the free
flow of information was explained in Mize, decided
shortly after the Supreme Court of the United States
decision in Herbert v. Lando, 441 U.S. 153, 99 S.
Ct. 1635, 60 L. Ed. 2d 115, (1979):
The availability of the requested material
through alternative discovery
distinguishes the inquiry into the editorial
process from the disclosure of a
confidential source of information. Direct
disclosure of the editorial process
exposes the thoughts, considerations,
and state of mind of editors and writers.
At best, indirect evidence is a mere
shadow of the editorial process. In
contrast, the identity of a source of
information may be ferreted out without
direct disclosure by the press. Through
vigorous discovery, a plaintiff may
narrow down the field of possible sources
and finally pinpoint the actual source.
Where the plaintiff is aware of who knew
about the transaction or event to which
the allegedly libelous statement refers,
his task of pinpointing the source is
simplified. Thus, the plaintiff’s need for
disclosure of confidential sources may be
slighter than his need for compelled
disclosure of the editorial process.
At the same time, the publisher’s and the
public’s interests in the confidentiality of
sources surpasses their interest in the
confidentiality of the editorial process.
In Herbert, the Supreme Court
explained that disclosure of the editorial
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process would aid in the free flow of
information. It would have this effect
because editors would decide against
publishing material they knew to be
false, if they anticipated that their
conversations concerning the material
might be disclosed in the course of a law
suit. Since publication of false
information would be discouraged, the
public’s interest in the free flow of
truthful information would be served.
Mize, 86 F.R.D. at 3.
Titan Sports, Inc. v. Turner Broadcasting Systems, Inc. (In re
Madden), 967 F.Supp. 142, 146 (W.D.Pa. 1997), rev’d and remanded on
other grounds, 151 F.3d 125 (3d Cir. 1998). See also Hatchard, 532
A.2d at 349 (recognizing that the First Amendment does not bar a plaintiff
from inquiring into the editorial processes of the media defendant
responsible for publishing a defamatory statement because the plaintiff is
entitled to discover information that permits a meaningful inquiry into
whether the statement was made maliciously or recklessly).
In order to overcome the reporter’s privilege, the movant must
demonstrate (1) that the information sought is material, relevant, and
necessary; (2) a strong showing that the information cannot be obtained by
alternative means; and (3) that the information is crucial to the movant’s
case. Riley v. City of Chester, 612 F.2d 708, 716-717 (3d Cir. 1979).
Here, Judge DiPaolo does not seek disclosure of a confidential source
or materials that could lead to the identity of a confidential source; rather,
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he seeks disclosure of documents related to the editorial process that he
contends he needs in order to prove actual malice in his defamation action.
Preliminarily, we note that prohibiting disclosure of the information
sought by Judge DiPaolo would not further the goal of the reporter’s
privilege, which is to insure the free flow of information to reporters,
because this case does not involve a confidential source who provided
information to appellants. To the contrary, appellants created the
information sought during their own editorial process in connection with
writing and publishing the articles that are at the heart of Judge DiPaolo’s
defamation action against them. As a result, compelled disclosure would not
result in a chilling effect because it would have no impact on any future
confidential source’s decision to provide information to a reporter.
Additionally, the information sought goes to Thompson’s, Palatella’s,
and Maciag’s states of mind. Because Judge DiPaolo must prove actual
malice in his defamation action against appellants, Thompson’s notes and
the resource materials used and the spreadsheet created by Palatella and
Maciag during the editorial process are material, relevant, necessary, and
crucial to Judge DiPaolo’s defamation case against them.
Finally, this information cannot be obtained by alternative means.
Thompson’s notes constitute her personal record of the Unicredit case based
on her experience and perception. As a result, Thompson’s personal record
cannot be obtained from anyone other than Thompson. Likewise, the
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resource materials and spreadsheet compilation are personal to Palatella and
Maciag because they chose what debtors’ cases to include and what
methodology to employ in their analysis in order to ascertain their own
meaning of the data. Consequently, the resource materials and spreadsheet
cannot be obtained from anyone other than Palatella and Maciag.
We, therefore, find no abuse of discretion in the trial court’s finding
that Judge DiPaolo overcame the reporter’s privilege and its resulting order
granting Judge DiPaolo’s motion to compel.
Order affirmed.
Bender, P.J.E. joins the Opinion
Shogan, J. files a Dissenting Opinion.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/15/2016
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