J-A04011-16 

2016 PA Super 125 

DOMINICK 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sources, including unpublished information.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.