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      sources, including unpublished information.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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J-A04011-16


      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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J-A04011-16


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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