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 S HOGAN, 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’ spread sheet are crucial to Judge DiPaolo’s case, I respectfully dissent. The qualified First Amendment [reporter’s] privile ge protects members of the news media from divulging t heir sources, including unpublished information.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 privile ge, designed to protect freedom of the press by insurin g 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 wh ether 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 th eJ-A04011-16

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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 disclos ure of information where: 1) the information sought is material, relev ant and necessary; 2) there is a strong showing that it can not be obtained by alternative means, and 3) the informati on 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 ta ken by Thompson on the Unicredit court hearing of November 10, 2010, b efore Judge Dunlavey. Thompson had reported on this hearing in two articl es, one published on November 11, 2010, and one published on November 14 , 2010. As noted by the learned Majority, Judge DiPaolo filed a three-c ount 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 f or Judge DiPaolo’s libel claims. In fact, Judge DiPaolo averred that Thomps on’s November 11, 2010 article was “a fair report of the proceedings and d id not in any way intimate or suggest that Judge Dunlavey questioned Judge DiP aolo’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.J-A04011-16

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The trial court also ordered the production of an unpublished spreadsheet prepared by reporters Palatella and Mac iag. The spreadsheet purportedly contained collected data and analysis o f the hundreds of Unicredit cases filed in Judge DiPaolo’s court, som e 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 ca ses from outside district,’” suggesting that his handling of the Unicredit cases was improper because

some of the debtors were not located in his ward an d 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 whi ch Judge DiPaolo was running for reelection both the Republican and Demo cratic ticket.” Amended Complaint, 12/28/11, at ¶ 95. As Appellants contend, Judge DiPaolo did not asser t that the spreadsheet contained inaccurate or defamatory info rmation. Appellants’ Brief at 23. Thus, its relevance is unproven. Mor eover, 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 toJ-A04011-16

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demonstrate how the spreadsheet is crucial to a def amation claim based on the April 17, 2010 article. Davis , 705 A.2d at 885. Accordingly, I respectfully dissent.