                                 [J-26-2015]
                  IN THE SUPREME COURT OF PENNSYLVANIA
                              MIDDLE DISTRICT

                SAYLOR, C.J., EAKIN, BAER, TODD, STEVENS, JJ.


RANDALL A. CASTELLANI AND JOSEPH :          No. 117 MAP 2014
CORCORAN,                         :
                                  :         Appeal from the Order of the Superior
                Appellants        :         Court at No. 907 MDA 2012 on March 11,
                                  :         2014, affirming the Order of the
                                  :         Lackawanna County Court of Common
           v.                     :         Pleas, Civil Division, at No. 2005 CV 69,
                                  :         filed August 19, 2011
                                  :
THE SCRANTON TIMES, L.P., T/D/B/A :
THE SCRANTON TIMES AND THE        :
TRIBUTE, AND JENNIFER HENN,       :         ARGUED: April 8, 2015
                                  :
                Appellees         :
                                  :


                                      OPINION


MR. JUSTICE BAER                                    DECIDED: October 27, 2015

      In this defamation action, Randall A. Castellani and Joseph J. Corcoran

(Appellants) brought suit against The Scranton Times and its former reporter, Jennifer

L. Henn (collectively, the Newspaper) regarding the Newspaper’s publication of three

articles concerning Appellants’ testimony before the Twentieth Statewide Investigating

Grand Jury.   The trial court denied Appellants’ pretrial motion to admit two judicial

opinions at trial as evidence of the Newspaper’s state of mind, and the Superior Court

affirmed. Upon review, we reverse. Because the judicial opinions are admissible as
evidence of the Newspaper’s state of mind, the trial court should have permitted

Appellants to introduce them in their action against the Newspaper.

       Appellants are former Lackawanna County Commissioners and members of the

Lackawanna County Prison Board who, in December 2003, testified before a statewide

investigating grand jury looking into alleged corruption at the Lackawanna County

Prison. The prison scandal was news in the Lackawanna County area, and on January

12, 2004, the Newspaper published an article reporting on Appellants’ grand jury

testimony. The article, entitled “Dems Stonewall,” cited an anonymous source close to

the grand jury proceedings who described Appellants’ testimony as vague, less than

candid, and evasive; reported that Appellants had “stonewalled” the proceedings and

been uncooperative with the grand jurors; and the jurors were so irritated with them that

they were “ready to throw both of them out.” Castellani v. Scranton Times, L.P., 956

A.2d 937, 940 (Pa. 2008) (quoting Jennifer Henn, Dems Stonewall, SCRANTON TIMES,

Jan. 12, 2004, at 1).

       Because the January 12, 2004 article appeared to reflect a breach of grand jury

secrecy, Appellants moved for sanctions against the Office of Attorney General for

leaking secret grand jury information.1 Senior Judge Isaac Garb, the presiding judge of

the grand jury, appointed a special prosecutor to investigate whether there had been an

impermissible breach of grand jury secrecy. Following the investigation, Judge Garb

reviewed the special prosecutor’s report and the grand jury transcripts (neither of which

1
       See 42 Pa.C.S. § 4549 (providing for disclosure of grand jury information only in
limited circumstances; “[o]therwise a juror, attorney, interpreter, stenographer, operator
of a recording device, or any typist who transcribes recorded testimony may disclose
matters occurring before the grand jury only when so directed by the court. All such
persons shall be sworn to secrecy, and shall be in contempt of court if they reveal any
information which they are sworn to keep secret.”).


                                     [J-26-2015] - 2
were public), and, on September 14, 2004, publicly released a memorandum evaluating

whether there had been a violation of grand jury secrecy. Based on his review, Judge

Garb concluded there was no breach of the grand jury proceedings from the Office of

the Attorney General or otherwise, and the January 12, 2004 article was at odds with

the transcript of Appellants’ testimony:

       . . . The reports published in these newspapers are completely at variance
       with the transcript of the testimony of these witnesses. The newspaper
       reports provide that the witnesses were evasive in their answers, were
       non-cooperative, essentially “stonewalled” the Grand Jury in its inquiry
       and that the Grand Jurors became irate as a result of that demeanor on
       the witnesses’ part, and demanded that they be “thrown out” of the Grand
       Jury courtroom. None of those things happened. . . . The report of the
       testimony of the witnesses was totally at variance and not borne out by the
       record of the witness’ testimony.


Castellani, 956 A.2d at 940-41 (quoting In re: The Twentieth Statewide Investigating

Grand Jury, 15 M.D. 2003, Notice No. 16, at 2 (Pa.Com.Pl. Dauphin Sept. 14, 2004)).

Judge Garb further queried whether the Newspaper’s source was in fact someone who

was not really privy to the proceedings at all.         Id.   (“Obviously, the source of the

reporter's information was someone not privy to the Grand Jury proceedings and,

therefore, not someone in the Office of the Attorney General.”).

       Thereafter, on September 18, 2004, the Newspaper published a second article

reporting on Judge Garb’s opinion, which included several quotes from the opinion, and

stated that “[t]he newspaper’s source has been contacted and says he absolutely

stands by his account of the grand jury testimony,” essentially ratifying its January 12,

2004 article. David Singleton, Judge: Account of Testimony was Incorrect, SCRANTON

TIMES, Sept. 18, 2004, at 1-2.

       Senior Judge Barry F. Feudale succeeded Judge Garb as the grand jury’s

presiding judge. In January of 2005, Appellants filed a defamation action against the

                                      [J-26-2015] - 3
Newspaper premised on the January 12, 2004 article and moved to compel disclosure

of the Newspaper’s source.2 Appellants further petitioned Judge Feudale to release the

special prosecutor’s report and the transcript of Appellant Corcoran’s grand jury

testimony.3 Judge Feudale denied Appellants’ motion for the special prosecutor’s report

and Appellant Corcoran’s transcripts in an order and supporting opinion dated June 29,

2005. According to Judge Feudale, grand jury secrecy outweighed Appellants’ need to

obtain the information for private litigation. Nevertheless, Judge Feudale, like Judge

Garb before him, further opined that the characterizations of Appellants’ grand jury

testimony contained in the January 12 and September 18 articles had no factual basis:

      . . . [Appellants’] testimony was either erroneously or egregiously reported
      and mischaracterized by the article[s] that are the subject of the
      defamation action. . . . In this case the source and the newspaper
      apparently not only knowingly asserted and published as alleged facts that
      which they acknowledge is illegal to assert/publish, but reaffirmed such in
      contravention of facts that both Judge Garb and now this Court (after our
      own review of the testimony of [Appellants]) assert have no foundation in
      the record of the testimony under dispute before the grand jury.

In re: The Twentieth Statewide Investigating Grand Jury, 15 M.D. 2003, Notice No. 16,

(Pa.Com.Pl. Dauphin June 29, 2005)), Reproduced Record (R.R.) 38.




2
        The trial court granted Appellants’ motion to compel disclosure of the source, and
the Newspaper appealed. The Superior Court reversed the order granting disclosure,
and, on further appeal, this Court affirmed the Superior Court, stating that the
Pennsylvania Shield Law, 42 Pa.C.S. § 5942, prohibited compelled disclosure of the
identity of the confidential source. Castellani v. Scranton Times, LP., 956 A.2d 937 (Pa.
2008).

3
      A member of the county prosecutor’s office or the Office of Attorney General had
already inadvertently released Appellant Castellani’s grand jury testimony.



                                     [J-26-2015] - 4
       On July 7, 2005, the Newspaper published a third article disputing Judge

Feudale’s conclusions and, once again, supporting its source from the grand jury.

Describing the defamation litigation, the article provided as follows:

       [Appellants] claim they were defamed in Jan. 12, 2004 article [sic]
       published by the [Newspaper] describing their testimony before the grand
       jury as vague and evasive. The article cited to an anonymous source
       close to the investigation. The former commissioners claim the story is
       false. The [N]ewspaper stands by its report.

Michael McNarney, Judge Won’t ‘Crack the Vault’ of Grand Jury Secrecy, SCRANTON

TIMES, July 7, 2005. The article further predicted that the Newspaper’s reporting would

be vindicated. Id.

       Appellants initiated a second defamation action in 2005 premised on the

September 18, 2004 (second) article, which was consolidated with the first. Following

resolution of the Shield Law dispute by this Court in 2008, the parties engaged in

extensive discovery and cross-filed for summary judgment in December 2010.

Appellants opposed the Newspaper’s motion for summary judgment by arguing that,

having reviewed the Garb and Feudale opinions, the Newspaper’s decision to republish

its original accusation and to stand by the account of its source was evidence of the

Newspaper’s state of mind, and therefore admissible to establish actual malice and

reckless disregard for truth or falsity in publishing both the January 12, 2004 and

September 18, 2004 articles.4


4
        As will be discussed herein, if the plaintiff in a defamation action is a public
official or public figure, such as Appellants, 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, Am.
Future Sys., Inc. v. Better Bus. Bureau of E. Pennsylvania, 923 A.2d 389, 400 (Pa.
2007), which can be proven by demonstrating that the defendant subjectively “acted
with reckless disregard for the truth ‘[by entertaining] serious doubts as to the truth of
(Kcontinued)

                                      [J-26-2015] - 5
       At oral argument on the competing summary judgment motions, the court

ordered separate briefing on the question of the admissibility of the Garb and Feudale

opinions. Appellants filed a supplemental brief contending that the trial court should

take judicial notice of the opinions as evidence of falsity and actual malice, relying on

Rule 201.5    In a separate argument, Appellants contended that under Weaver v.

Lancaster Newspapers, Inc., 926 A.2d 899 (Pa. 2007), which held that republication of a

defamatory statement is relevant and admissible to prove the publisher’s state of mind

concerning actual malice in regard to the initial publication, the Garb and Feudale

opinions should be admitted as evidence of the Newspaper’s state of mind as

implicating actual malice, or reckless disregard for the truth or falsity of the challenged

articles.

       In Weaver, a police officer was accused by a convicted murderer of raping her in

the course of the investigation into the murder. The accusation was highly publicized,

and the individual eventually sued for defamation, Oscar Lee Brownstein, wrote a letter

to the editor of the Intelligencer Journal of Lancaster, in which he echoed the rape

allegations, and further stated that the officer had been arraigned in the past for the

sexual abuse of women and children. Id. at 901. The newspaper published the letter.

When no criminal charges were brought against the officer, he sued Mr. Brownstein and

the newspaper for defamation, averring that the allegations were false.             Shortly

(continuedK)
his publication.’” Weaver v. Lancaster Newspapers, Inc., 926 A.2d 899, 903 (Pa. 2007)
(quoting Norton v. Glenn, 860 A.2d 48, 55 (Pa. 2004)).

5
        Rule 201 provides for judicial notice of adjudicative facts, and defines such a fact
as not being subject to reasonable dispute, generally known within the territorial
jurisdiction of the trial court, or capable of accurate and ready determination by resort to
sources whose accuracy cannot reasonably be questioned. Pa.R.E. 201(a), (b).


                                      [J-26-2015] - 6
thereafter, a website dedicated to freeing the murderer republished the letter in full with

Mr. Brownstein’s permission.       In the defamation suit, the trial court granted the

defendants’ motion for summary judgment, and the Superior Court affirmed.

       On further appeal to this Court, we accepted review in Weaver to determine

whether the republication of the letter could be used as substantive evidence of the

author’s “actual malice” in publishing the letter the first time.6 Id. at 900. We began our

analysis by noting that actual malice can be proven by demonstrating that the defendant

subjectively “acted with reckless disregard for the truth ‘[by entertaining] serious doubts

as to the truth of his publication.’” Id. at 903 (quoting Norton v. Glenn, 860 A.2d 48, 55

(Pa. 2004)).

       We then noted that the Restatement (Second) of Torts § 580A, cmt. d, provides

that “[r]epublication of a statement after the defendant has been notified that the plaintiff

contends that it is false and defamatory may be treated as evidence of reckless

disregard.” Id. at 905-06. In conformity with this section of the Restatement, we held in

Weaver that where a publisher is on notice that the statement may be false,

republication of an alleged defamatory comment may be used as evidence of the

defendant’s state of mind and actual malice in regard to the prior publication because

the second publication “tends to indicate a disregard for the truth that may have been

present at the time of the initial publication.” Id. at 905. We concluded that the second

publication had to be relevant and competent, and, to the extent that it was, this




6
        Actual malice in this context means that Mr. Brownstein published the letter in the
newspaper with knowledge that his statements concerning the police officer were false
or that he acted with reckless disregard to their falsity. Weaver, 926 A.2d at 901-02.


                                      [J-26-2015] - 7
republication would provide insight into the publisher’s state of mind and was thus

admissible. Id. at 906. The weight of the evidence was for the jury. Id.

       Relying on Weaver, Appellants herein argued to the trial court that like the

plaintiff’s complaint in that case, which put the defamation defendant on notice of the

potential falsity of the allegedly defamatory statement, the Garb opinion was admissible

as evidence of notice to the Newspaper that the statements contained in the January

12, 2004 (first) article may be false, and that the republication of the allegedly

defamatory statements contained therein was evidence of the Newspaper’s actual

malice relative to that article. Appellants similarly argued that the Garb and Feudale

opinions were admissible as evidence of notice that the statements contained in the

September 18, 2004 (second) article may be false, and that the republication of the

allegedly defamatory statements contained therein was evidence of the Newspaper’s

actual malice relative to that article. The Newspaper ignored Appellants’ reliance on

Weaver and its discussion of the relevancy of state of mind evidence. Instead, it argued

that the Garb and Feudale opinions were inadmissible hearsay, and then bootstrapped

from that premise to contend that inadmissible hearsay may not be introduced into

evidence through judicial notice.      This analysis, according to the Newspaper, was

dispositive of the issue before the trial court.

       On March 4, 2011, the trial court denied both parties’ motions for summary

judgment, without considering the Garb or Feudale opinions or their purported

admissibility. On June 8, 2011, the trial court separately addressed the admissibility of

the two judicial opinions, resolving the matter purely by analyzing Rule 201 (judicial

notice) and not addressing Appellants’ Weaver/relevancy/state of mind argument.

Specifically, the trial court held that it could not take judicial notice of the Garb and


                                       [J-26-2015] - 8
Feudale opinions or the contents thereof pursuant to Rule 201 because the opinions did

not contain undisputed facts. See Pa.R.E. 201(b) (defining adjudicative facts subject to

judicial notice as not being subject to reasonable dispute, generally known within the

territorial jurisdiction of the trial court, or capable of accurate and ready determination by

resort to sources whose accuracy cannot reasonably be questioned). Rather, in the trial

court’s opinion, the judicial opinions contained hearsay, as they pertained to what the

special prosecutor’s report stated, and whether the grand jury transcripts supported the

Newspaper’s characterization of the jurists’ sentiments. The trial court considered that

this hearsay was being offered by Appellants for the truth of the matters asserted

therein, i.e., that the Newspaper published false statements concerning Appellants, and

therefore was inappropriate as a subject of judicial notice.7

       The trial court ordered that the portions of Judge Garb’s opinion which appeared

in the September 18, 2004 article were admissible, but that the remainder constituted

inadmissible hearsay. The trial court ruled that the entirety of Judge Feudale’s opinion

was inadmissible hearsay. As noted, despite Appellants’ argument that the Garb and

Feudale opinions were relevant and admissible pursuant to Weaver as relevant

evidence of the Newspaper’s state of mind, the trial court did not discuss this argument

or address Weaver.

       Appellants moved for reconsideration of the June 8, 2011 order, urging the trial

court to consider Weaver and their arguments that the Garb and Feudale opinions were


7
        In an order dated April 11, 2012, the trial court concluded that the July 7, 2005,
article was admissible as evidence of actual malice, but declined to rule on the
admissibility of the excerpts of the Feudale opinion contained therein. The Newspaper
appealed this ruling, which is presently on hold before our Court pending the outcome of
this case.


                                       [J-26-2015] - 9
admissible pursuant to that case. Appellants also sought an order certifying the order

for immediate interlocutory review. Although the trial court denied substantive relief, it

certified the June 8, 2011 order for appeal. When the Superior Court denied Appellants’

petition for review, they appealed to this Court, which granted the petition, vacated the

Superior Court’s order, and remanded with direction to the Superior Court to consider

the admissibility of the Garb and Feudale opinions. See Castellani v. Scranton Times,

LP., 41 A.3d 852 (Pa. 2012), as amended, 41 A.3d 1285 (Pa. 2012).

      On remand from this Court, a panel of the Superior Court affirmed the decision of

the trial court that the Garb and Feudale opinions are inadmissible. Castellani v. The

Scranton Times, 907 MDA 2012 (March 11, 2014).8 Appellants argued to the Superior

Court that the judicial opinions were relevant and admissible pursuant to Weaver as

evidence of the Newspaper’s malicious state of mind, and were not, as the trial court

concluded, inadmissible hearsay.

      The Superior Court, however, distinguished Weaver on its facts. According to

the Superior Court, the notice of potential falsity in Weaver came from the plaintiff’s

defamation complaint that informed the author that his statement was false, “as tested

against public record.”   Super. Ct. Mem. Op. at 45.        Specifically, the defamatory

statement in Weaver included an assertion that the police officer had been arraigned on

charges of sexual molestation, a fact which the police officer denied in his defamation

complaint and which could have been tested by reviewing the public record.            The

Superior Court reasoned that unlike the complaint in Weaver, the facts contained in the

Garb and Feudale opinions could not be verified against the public record because of

8
      Judge Gantman authored the Superior Court opinion, while Judges Bowes and
Olson concurred in the result.


                                    [J-26-2015] - 10
their association with secret, grand jury proceedings. Accordingly, based on this factual

distinction, the Superior Court held that unlike the defamation complaint in Weaver, the

Garb opinion was not relevant evidence “that rises to the level of official ‘notice’

sufficient to cause the [N]ewspaper to doubt its articles or to show the [N]ewspaper’s

actual malice’” with regard to the publication of any of the articles. Super. Ct. Mem. Op.

at 47. Examining the Feudale opinion, the Superior Court held that it was rife with dicta,

and therefore also irrelevant, as “incompetent evidence of the newspaper’s state of

mind when it published either the September 18, 2004 or, by implication, the January

12, 2004 article.” Id. at 48.

       Switching its focus from the relevancy analysis of state of mind evidence in

Weaver to hearsay, the Superior Court agreed with the trial court that the judicial

opinions were inadmissible hearsay. The Superior Court explained that because “the

jurors would have to consider and accept the substance of the Garb Opinion and the

Feudale Opinion to understand what the Opinions were being offered to prove,” they

were hearsay which could not be admitted even with a limiting instruction. Id.

       Finally, the panel opined about the unfair prejudice it perceived if the opinions

were admitted, noting that there is an increased risk that juries will improperly decide

issues based upon evidence or statements from jurists. Id. at 49-50 (citing Nipper v.

Snipes, 7 F.3d 415, 418 (4th Cir. 1993)). The Superior Court thus precluded Appellants

from introducing the judicial opinions in their entirety at trial as evidence of the

Newspaper’s reckless disregard for the truth or falsity of the January 12, 2004 and

September 18, 2004 articles.

       Appellants appealed to this Court, and we granted review to decide two issues:

       (1) Whether in excluding Judge Garb's [Opinion] and Judge [Feudale’s]
       Opinion as inadmissible hearsay, the Superior Court misapplied this

                                    [J-26-2015] - 11
       Court's controlling authority under Weaver v. Lancaster Newspapers, Inc.,
       592 Pa. 458, 926 A.2d 899 (2007), where both documents provided [the]
       Newspaper with strong grounds for believing that, before republishing the
       defamatory content of a January 12, 2004 article reporting on [Appellants’]
       testimony before a statewide investigating grand jury, the content of the
       January 12, 2004 article was false.

       (2) Whether the Superior Court erred in its alternative holding that Judge
       Garb's [Opinion] and Judge Feudale's Opinion should be excluded under
       Pa.R.E. 403 on prejudice grounds, where both documents are elemental
       evidence of [the Newspaper's] state of mind and reckless disregard for the
       truth or falsity of [the Newspaper's] January 12, 2004 and September 18,
       2004 articles reporting on [Appellants’] grand jury testimony.


Castellani v. Scranton Times, L.P., 101 A.3d 782 (Pa. 2014).

       Addressing the first issue on appeal, Appellants continue to rely on Weaver,

which they assert stands for the proposition that once a defendant has information that

provides grounds for questioning the veracity of a prior publication, the defendant’s

republication of the same statement is relevant, competent evidence of the defendant’s

state of mind and reckless disregard for the potential truth or falsity of the republication

as well as the initial publication.       See Weaver, 926 A.2d at 906 (“Republications,

retractions and refusals to retract are similar in that they are subsequent acts used to

demonstrate a previous state of mind.”).            According to Appellants, evidence of a

publisher’s actual malice may include evidence which should have put the publisher on

notice of the potential falsity of the initial publication.

       Whether the relevant portions of the Garb and Feudale opinions are dicta is

irrelevant, according to Appellants, because the opinions should have given the

Newspaper pause to question the veracity of its initial publication, even more so than

the self-serving complaint filed by the plaintiff in Weaver.       Addressing the Superior

Court’s concern that the Newspaper had no way to verify Judge Garb’s personal views

as recounted in his opinion, Appellants argue that nowhere in Weaver did this Court

                                        [J-26-2015] - 12
evince a concern for a defendant’s ability to verify independently the veracity of

information that should have put the publisher on notice of potential falsity.

       Turning to whether the judicial opinions are inadmissible hearsay, Appellants

argue that because they are not being admitted for their truth, hearsay concerns are not

implicated. Rather, according to Appellants, the judicial opinions are admissible as

evidence of the Newspaper’s state of mind; jurors would not be required to accept as

true the substance of the judicial opinions, but only that the Newspaper had read the

opinions before republishing the defamatory contents of the January 12, 2004 article.

       Addressing the second issue on appeal, Appellants disagree with the Superior

Court’s holding that even if the two judicial opinions were admissible under Weaver as

relevant evidence of the Newspaper’s state of mind, they should be excluded because

of the potential for unfair prejudice under Rule 403.        According to Appellants, the

introduction of evidence of actual malice is, by its nature, prejudicial; it is not, however,

unduly prejudicial. In this regard, Appellants argue that any undue prejudice could be

ameliorated by a proper cautionary jury instruction informing the jury that the judicial

opinions should be considered only in deciding actual malice, and not whether the

Newspaper’s January 12, 2004 and September 18, 2004 articles were false.

       With regard to the first issue on appeal, whether the judicial opinions are relevant

evidence under Weaver, the Newspaper takes a narrow view of Weaver to assert that

our holding therein was premised on the fact that the defendant republished his

defamatory statement about the police officer’s arraignment even after he had been

alerted by the plaintiff’s complaint that the statements were verifiably false (because

they could be tested against the public record), which could support an inference of

actual malice when the initial statement was made. The Newspaper emphasizes that


                                      [J-26-2015] - 13
this inference flows only from a defendant’s decision to republish the defamatory

statement despite notice that the statements are verifiably false. In this respect, the

Newspaper relies on a Superior Court case which held that publication of a statement in

the face of the plaintiff’s denial of the truth of that statement may be probative of actual

malice only if the denial is verifiable, see Curran v. Philadelphia Newspapers, Inc., 546

A.2d 639, 642 (Pa.Super. 1988) (stating that to allow an inference of actual malice when

a defendant publishes a defamatory statement in the face of the plaintiff’s denial, the

denial must be “verifiable”), and argues that the assessment of whether republication

evidence is relevant to actual malice should be no less stringent.

       Premised on the purported criteria of verifiability, the Newspaper argues that the

Garb and Feudale opinions do not meet this criterion as they did not provide it with

verifiable notice of falsity.   In this respect, the Newspaper argues that the notice

document in Weaver (the plaintiff’s defamation complaint) alerted the defendant to the

falsity of the objectively verifiable fact that the plaintiff had never been arraigned for a

crime, a matter of public record. By contrast, according to the Newspaper, the judicial

opinions were not verifiable and therefore did not provide it with obvious reason to doubt

the veracity of its January 12, 2004 article, and cannot support a reasonable inference

of actual malice resulting from the subsequent articles. The Newspaper perceives this

difference to be dispositive.

       The Newspaper further focuses on the fact that neither Judge Garb nor Judge

Feudale were present when Appellants testified before the grand jury, and their review

of the cold record could not reveal anything about the jury’s reaction to their testimony,

which was the subject of the Newspaper’s articles. Characterizing the judicial opinions

as mere personal views rather than factual adjudications, the Newspaper asserts they


                                     [J-26-2015] - 14
are non-binding dicta entitled to no weight or authority and are insufficient to provide

notice of falsity that would lead to a reasonable inference of malice arising from

republication. According to the Newspaper, the Superior Court properly applied Weaver

to these facts and concluded that the judicial opinions were not relevant to actual malice

because they did not amount to a verifiable denial or otherwise provide it with an

obvious reason to doubt the veracity of its reporting.

       Even if the judicial opinions are relevant under Weaver, the Newspaper contends

that they are inadmissible as hearsay because the jury would need to accept the

opinions as true in order to draw any inference of actual malice. See Pa.R.E. 801(c)

(defining hearsay as an out-of-court statement made by the declarant that a party

“offers in evidence to prove the truth of the matter asserted in the statement.”). The

Newspaper continues that permitting the jury to hear the judges’ hearsay impressions

about a newspaper article reporting on what the grand jurors said and how they felt

about Appellants’ testimony would be fundamentally unfair because none of the

individuals would be in court and subject to cross-examination.        According to the

Newspaper, Appellants’ argument that the judicial opinions are being offered merely to

show that the Newspaper had notice of their content (casting doubt on its source) does

not cure the hearsay problem because the jurors would have to believe the judges’

statements contained therein to understand what the opinions were being offered to

prove. Nor would a limiting instruction cure the risk that the jury would consider the

judicial opinions for their truth because, the Newspaper argues, the court’s instruction

would absurdly have to advise the jury as follows: that it could consider the judicial

opinions as evidence that the Newspaper knew its January 12, 2004 article was false




                                     [J-26-2015] - 15
(or recklessly disregarded whether it was false), but that it could not consider the

opinions as evidence of whether the article actually was false.

       The Newspaper continues that the judicial opinions are not admissible to prove

the Newspaper’s state of mind. In this respect, the Newspaper asserts that state of

mind evidence is only admissible to show the declarant’s state of mind. According to

the Newspaper, the judicial opinions are not evidence of its state of mind because the

Newspaper did not author the opinions. The Newspaper further adds that it is unable to

verify what the judges asserted in their opinions due to grand jury secrecy, and stresses

that even if it could review the grand jury record, the transcripts would not reflect the

grand jurors’ impressions of Appellants’ testimony, which was the subject of its January

12, 2004 article.

       Turning to the second issue on appeal, the Newspaper argues that if the judicial

opinions are relevant and are not considered inadmissible hearsay, they should still be

excluded from evidence because of their insignificant probative value and potential for

unfair prejudice. See Pa.R.E. 403.9 According to the Newspaper, the judicial opinions

are only marginally probative because they include dicta, based on unknown and

inaccessible evidence. Additionally, according to the Newspaper, the judicial opinions

carry with them unfair prejudice because, being authored by judges, they would be

persuasive to the jurors on whether the Newspaper published its articles with reckless

disregard for falsity. The Newspaper continues that it is for the trial court and the jury,

not Judge Garb or Judge Feudale, to decide whether Appellants have met their burden

9
      Rule 403 provides that “[t]he court may exclude relevant evidence if its probative
value is outweighed by a danger of one or more of the following: unfair prejudice,
confusing the issues, misleading the jury, undue delay, wasting time, or needlessly
presenting cumulative evidence.” Pa.R.E. 403.


                                     [J-26-2015] - 16
of proof. As judicial opinions, according to the Newspaper, this evidence would have an

undue tendency to cause the jury to decide the case on an improper basis. See e.g.,

Nipper, 7 F.3d at 418 (“[J]udicial findings of fact ‘present a rare case where, by virtue of

their having been made by a judge, they would likely be given undue weight by the jury,

thus creating a serious danger of unfair prejudice.’” (quoting Zenith Radio Corp. v.

Matsushita Elec. Indus. Co., Ltd., 505 F.Supp. 1125, 1186 (E.D. Pa. 1980)).

       Although we review evidentiary rulings under an abuse of discretion standard,

Zieber v. Bogert, 773 A.2d 758, 760 n.3 (Pa. 2001), in this case we granted review to

determine whether the trial court’s evidentiary ruling was based on a misapplication of

Weaver. To the extent the trial court’s ruling turned on a question of law, our scope of

review is plenary, id., and the standard of review is de novo, Commonwealth v. Hicks,

91 A.3d 47, 52 (Pa. 2014).

       The parties agree that to be admissible, the judicial opinions must clear three

evidentiary hurdles. First, the evidence must be relevant. Weaver, 926 A.2d at 905.

Second, the evidence must be admissible, which, in this context, requires that the

evidence is not inadmissible hearsay. Pa.R.E. 802 (“Hearsay is not admissible except

as provided by these rules, by other rules prescribed by the Pennsylvania Supreme

Court, or by statute.”).     Third, the evidence must be probative and not unfairly

prejudicial. Pa.R.E. 403. Before we address whether the two judicial opinions are

admissible, however, we examine the relevant law regarding defamation.

       The Uniform Single Publication Act sets forth the elements of a prima facie

defamation case, placing on the plaintiff the burden of proving as follows:

       (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.

                                     [J-26-2015] - 17
       (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.
       (7) Abuse of a conditionally privileged occasion.

42 Pa.C.S. § 8343(a). Where the plaintiff has met this burden, it is the defendant’s

burden to prove the following:

       (1) The truth of the defamatory communication.
       (2) The privileged character of the occasion on which it was published.
       (3) The character of the subject matter of defamatory comment as of
       public concern.


Id. at § 8343(b).

       Precedent has further developed that where the plaintiff is a public official, he or

she may not recover damages for a defamatory falsehood that relates to his or her

official conduct “unless he proves that the statement was made with ‘actual malice’ -

that is, with knowledge that it was false or with reckless disregard of whether it was

false. . .” New York Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964). See also

Time, Inc. v. Pape, 401 U.S. 279, 284 (1971); St. Amant v. Thompson, 390 U.S. 727,

731 (1968); Sprague v. Walter, 543 A.2d 1078, 1083-84 (Pa. 1988); Curran v.

Philadelphia Newspapers, Inc., 439 A.2d 652, 662 (Pa. 1981). “[P]roof of ‘actual malice’

calls a defendant’s state of mind into question.” Curran, 439 A.2d at 662 (quoting

Hutchinson v. Proxmire, 443 U.S. 111, 120 n.9 (1979)). In this respect, to establish that

the defendant acted with reckless disregard for the truth, “[t]here must be sufficient

evidence to permit the conclusion that the defendant in fact entertained serious doubts

as to the truth of his publication.” Weaver, 926 A.2d at 903 (quoting Norton, 860 A.2d at

55). See also Curran, 546 A.2d at 642. Moreover, we have explained that actual

malice can be shown where “the publisher’s allegations are so inherently improbable

that only a reckless man would have put them in circulation,” or “where there are

                                     [J-26-2015] - 18
obvious reasons to doubt the veracity of the informant or the accuracy of his reports.”

Weaver, 926 A.2d at 903 (quoting St. Amant, 390 U.S. at 732).

       The difficulty of meeting the burden to establish actual malice is demonstrated in

St. Amant, where the Supreme Court specified that this evidentiary burden requires

more than consideration of whether a reasonable person would have published the

statement without further investigation; rather, it requires the plaintiff to present

evidence sufficient “to permit the conclusion that the defendant in fact entertained

serious doubts as to the truth of his publication.” 390 U.S. at 731.

       The burdens of production and persuasion as to both falsity and “actual malice”

are on the public official-plaintiff. See New York Times, 376 U.S. at 279; Philadelphia

Newspapers v. Hepps, 475 U.S. 767, 776 (1986). It is Appellants’ burden, therefore, to

prove that the January 12 and September 18, 2004 articles were false and that the

Newspaper published them either with knowledge of their falsity or with reckless

disregard for whether they were true or false. They seek to meet the burden of proving

actual malice, at least in part, by relying on the judicial opinions authored by Judges

Garb and Feudale as providing notice of potential falsity, and on the republication of the

allegedly defamatory statements following such notice. With this background in mind,

we will examine whether the judicial opinions constitute relevant, admissible evidence

that is not unduly prejudicial.

       Addressing first the relevance of the two judicial opinions, and despite the

Newspaper’s arguments to the contrary, this case is resolved by a straightforward

application of Weaver. Evidence is relevant if it tends to establish some fact material to

the case, or if it tends to make a fact at issue more or less probable. Weaver, 926 A.2d

at 905 (citing Commonwealth v. Scott, 389 A.2d 79, 82 (Pa. 1978)); Pa.R.E. 401.


                                     [J-26-2015] - 19
Weaver squarely confronted the relevance of republication evidence in a defamation

action to prove the defendant’s actual malice at the time of the initial publication. In

Weaver, we held that the Superior Court in that case erred as a matter of law when it

decided that the republication of the letter, made after the plaintiff filed his defamation

complaint, was irrelevant to an inquiry of actual malice at the time of the first publication.

926 A.2d at 905.      Relying on the Restatement (Second) of Torts § 580A, cmt. d

(2006),10 and Herbert v. Lando, 441 U.S. 153, 164 n.12 (1979) (providing that “[t]he

existence of actual malice may be shown in many ways,” including direct or

circumstantial competent evidence of prior or subsequent defamations, and subsequent

statements of the defendant), we held that republications, retractions, and refusals to

retract are similar in that they are subsequent acts “which can be relevant to the

determination of previous states of mind.” Weaver, 926 A.2d at 906.

       Because evidence of Mr. Brownstein’s subjective mental state at the time he first

published his letter was an element of a prima facie case of defamation, we held that

evidence showing that he republished the statement (accusing the police officer of

having been arraigned on charges of sexual molestation), after the police officer’s

complaint put him on notice that the accusation “might be false,” would inform the jury’s

inquiry on this fact by making it more probable that he was either aware of the falsity of

the statement or “acted recklessly with regard to the truth at the time of the initial

publication.” Id. at 905.



10
       The Restatement (Second) of Torts § 580A, cmt. d (2006), as quoted supra,
provides that “[r]epublication of a statement after the defendant has been notified that
the plaintiff contends that it is false and defamatory may be treated as evidence of
reckless disregard.”


                                      [J-26-2015] - 20
       The same conclusion results from the relevance inquiry in this case. The fact at

issue is the Newspaper’s subjective state of mind at the time it published the first article

on January 12, 2004, and the second article on September 18, 2004.                Evidence

showing that the Newspaper republished the facts initially alleged in the January 12,

2004 article after Judge Garb’s judicial opinion put it on notice that those facts may be

false, and again after Judge Feudale’s opinion provided similar notice, informs the jury’s

inquiry by making it more or less probable that the Newspaper either knew the

information its source had provided was false or that it acted in reckless disregard for

the truth at the time of the initial publication.

       The Newspaper and the Superior Court attempt to distinguish the notice provided

to the defamation defendant in Weaver from the notice provided to the Newspaper by

the judicial opinions herein by describing the Garb and Feudale opinions as dicta,

representing merely the personal opinions of the judges.         Whether the statements

contained within the judicial opinions can be properly characterized as dicta, however,

misses the point. The judicial opinions are relevant because they put the Newspaper on

notice that it should question the veracity of its initial publication, and are not made

irrelevant for this purpose by an examination of whether they include dicta or are

premised on the judges’ personal opinions.11


11
      It is also questionable whether the judicial opinions may properly be
characterized as dicta. As the Commonwealth Court has described, dicta is “an opinion
by a court on a question that is directly involved, briefed, and argued by counsel, and
even passed on by the court, but that is not essential to the decision. Dicta has no
precedential value.” Vally Twp. v. City of Coatesville, 894 A.2d 885, 889 (Pa.Cmwlth.
2006). For example, when Judge Garb issued his decision, he was addressing the
source of the grand jury leaks. It was his conclusion that whoever the source was, he
was not privy to the grand jury proceedings and, therefore, there was no breach of
secrecy by any agent of the Attorney General’s office: “Obviously, the source of the
(Kcontinued)

                                        [J-26-2015] - 21
       Moreover, there is no basis to hold that the plaintiff’s complaint in Weaver should

put the publisher on notice of potential falsity, but judicial opinions by the two judicial

officers overseeing the statewide investigating grand jury should not. The Newspaper

has attempted to craft a requirement of verifiability into Weaver, arguing that notice

which gives a publisher reason to doubt the truth of a statement is only relevant to

establish actual malice where it is verifiable. We did not impose this requirement in

Weaver, however.       Rather, we held that the defendant “received notice that his

allegations were potentially false” when the plaintiff filed the complaint against the

defendant. Evidence may put a publisher on notice of potential falsity even where it is

not verifiable or indisputable.12



(continuedK)
reporter's information was someone not privy to the Grand Jury proceedings and,
therefore, not someone in the Office of the Attorney General.” Castellani v. Scranton
Times, L.P., 956 A.2d 937, 940 (Pa. 2008). Rather than constituting dicta, this holding
appears to be essential to Judge Garb’s decision.

12
       Although we did not require verifiability in Weaver, the Superior Court in Curran
noted that a verifiable denial by the subject of a statement is one form that evidence of
actual malice may take:

       The term ‘reckless disregard’ is not amenable to one infallible definition. It
       is a term which is understood by considering a variety of factors in the
       context of an actual case. Such factors may be whether the author
       published a statement in the face of verifiable denials, and without further
       investigation or corroboration, where allegations were clearly serious
       enough to warrant some attempt at substantiation. Likewise, evidence of
       unexplained distortion or the absence of any factual basis to support an
       accusation may be considered in determining whether the record is
       sufficient to support a finding of “actual malice.”

Curran, 546 A.2d at 642. The Superior Court did not, however, require that notice of a
statement’s potential falsity be verifiable to be evidence of actual malice; a verifiable
denial is just one way for a plaintiff to demonstrate notice of potential falsity.


                                     [J-26-2015] - 22
       We therefore reaffirm the holding in Weaver that republication after receiving

notice of the potential falsity of the initial publication is relevant to a determination of

actual malice in the initial publication as well as the republication. Weaver, 926 A.2d at

905. As applied to the facts herein, Judge Garb’s judicial opinion questioning whether

the Newspaper’s source was privy to Appellants’ grand jury testimony, and Judge

Feudale’s opinion that Appellants’ testimony was either erroneously or egregiously

reported and mischaracterized, provided notice of the potential falsity of the

Newspaper’s articles and are relevant to a determination of the Newspaper’s actual

malice with respect to these articles.      Where evidence is relevant to Appellants’

threshold issue of actual malice, the question of the weight of that evidence requires an

assessment by the fact-finder. The Newspaper’s arguments that the judicial opinions

did not provide it with sufficient proof that its defamatory statements were false goes to

the weight the jury gives to the opinions as evidence of actual malice, not their

relevance.

       Even if the judicial opinions are relevant under Weaver, the Newspaper further

argues they are not competent evidence because they are inadmissible hearsay. See

Pa.R.E. 802 (providing that hearsay is not admissible); Pa.R.E. 801(c) (defining hearsay

as an out-of-court statement offered into evidence “to prove the truth of the matter

asserted in the statement.”). A statement that is not offered for its truth, however, is not

hearsay. Commonwealth v. Puksar, 740 A.2d 219, 225 (Pa. 1999). Here, Appellants

seek to introduce the judicial opinions not for their truth, but to establish the

Newspaper’s actual malice by showing that the Newspaper had reason to doubt the

truth of the defamatory statements. Out-of-court statements offered to establish notice

to a defendant are not hearsay. See, e.g., Aldridge v. Edmunds, 750 A.2d 292, 297 n.4


                                     [J-26-2015] - 23
(Pa. 2000) (quoting with approval a Michigan Court of Appeals case, Fletcher v. Ford

Motor Co., 342 N.W.2d 285, 288 (Mich. App. 1983), providing that a treatise could be

used as evidence for the non-hearsay purpose of raising a presumption of notice to the

defendant); Cleland Simpson Co. v. Workmen’s Compensation Appeal Bd., 562 A.2d

981 (Pa.Cmwlth. 1989) (holding that out-of-court statements offered as evidence that an

employer had notice that the claimant’s injury was work-related was not hearsay);

Hoffmaster v. County of Allegheny, 550 A.2d 1023 (Pa.Cmwlth. 1988) (holding that an

out-of-court statement offered as evidence that the defendant had notice of a dangerous

condition was not offered to prove the truth of the matter asserted and therefore was not

hearsay).

      Similarly to this precedent, Appellants seek to introduce the judicial opinions not

as evidence of Judges Garb and Feudale’s state of mind, but of the Newspaper’s state

of mind. Out-of-court statements offered as evidence of what the listener heard, to

prove the listener’s state of mind, are not offered to prove the truth of the matter

asserted, and, therefore, are not hearsay. See, e.g., Commonwealth v. Fisher, 681

A.2d 130, 140 (Pa. 1996) (holding that “[o]ut of court statements by a murder victim may

be admitted to establish the motive of the defendant when those statements are not

offered to prove the truth of the matter asserted.”); Commonwealth v. Griffin, 515 A.2d

865, 871 (Pa. 1986) (holding that out-of-court statements offered as evidence of the

defendant’s motive were not hearsay). A simple instruction to the jury that it was to

consider the judicial opinions as evidence of the Newspaper’s actual malice, but not as

evidence of the whether the defamatory statements were false, would alleviate the

confusion the Newspaper argues will arise from this evidence.




                                    [J-26-2015] - 24
       Turning to whether the relevant evidence of the judicial opinions should be

excluded because their probative value is outweighed by a danger of unfair prejudice as

the Newspaper argues and the Superior Court found, see Pa.R.E. 403, we agree with

Appellants in this respect. First, the two judicial opinions are highly probative because

they speak directly to the issue of the Newspaper’s state of mind at the time of the initial

publication and republications, and provided strong evidence that the Newspaper was

on notice of their potential falsity. Second, “unfair prejudice” means “a tendency to

suggest decision on an improper basis or to divert the jury’s attention away from its duty

of weighing the evidence impartially.” Pa.R.E. 403 (comment). This evidence of malice

will undoubtedly be prejudicial to the Newspaper. We do not believe, however, that it

will suggest a decision on an improper basis. As we explained above, the potential for

the jury to consider the judicial opinions for an improper basis, such as evidence of the

defamatory statements’ falsity, can be ameliorated by a limiting instruction to the jury

that it alone must decide whether the Newspaper’s articles were published with malice,

and the judicial opinions were offered for the limited purpose of supporting Appellants’

claim in this regard.13



13
       We appreciate the thoughtful responses of Chief Justice Saylor and Justice
Eakin in their respective concurring and dissenting opinions. We return, however, to the
well-established presumption that juries follow the court’s instructions. While we
acknowledge that the judicial opinions are powerful evidence, many cases involve the
admission of powerful evidence with appropriate limiting instructions. We do not believe
that the circumstances herein warrant an exception to our general presumption and
rhetorically question where we would draw the line regarding admissibility of proper but
powerful evidence should we reject the prophylactic effect of limiting instructions.
       Additionally, with respect to the responsive opinions’ suggestion that the solution
to the potential for any unfair prejudice is to bifurcate the falsity and malice elements,
we view this decision as appropriate for the trial court upon remand if requested by the
Newspaper.


                                     [J-26-2015] - 25
       For these reasons, we reverse the Superior Court’s order and direct the trial

court to allow Appellants to introduce Judge Garb’s and Judge Feudale’s opinions in

their entirety as evidence for the purpose of the jury’s consideration of the Newspaper’s

actual malice in publishing the initial defamatory statements on January 12, 2004, and

republishing them on September 18, 2004. The court should provide proper instruction

to allow for the use of this evidence for this limited purpose.

       Madame Justice Todd and Mr. Justice Stevens join the opinion.

       Mr. Chief Justice Saylor files a concurring and dissenting opinion.

       Mr. Justice Eakin files a concurring and dissenting opinion.




                                      [J-26-2015] - 26
