                     IN THE SUPREME COURT OF PENNSYLVANIA
                                 MIDDLE DISTRICT


RANDALL A. CASTELLANI AND JOSEPH                : No. 477 MAL 2014
J. CORCORAN,                                    :
                                                : Petition for Allowance of Appeal from
                   Petitioners                  : the Order of the Superior Court
                                                :
              v.                                :
                                                :
                                                :
THE SCRANTON TIMES, L.P. T/D/B/A                :
THE SCRANTON TIMES AND THE                      :
TRIBUNE AND JENNIFER HENN,                      :
                                                :
                   Respondents                  :




                                 CONCURRING STATEMENT


CHIEF JUSTICE SAYLOR                                     FILED: March 3, 2016

       This interlocutory appeal is part of the same defamation case recently addressed

in Castellani v. Scranton Times, L.P., ___ Pa. ___, 124 A.3d 1229 (2015) (“Castellani

II”), as referenced in the present Order.1 In that appeal, this Court held that opinions

written by Judges Garb and Feudale could be admitted at trial to prove malice on the

part of the Newspaper.       See id. at ___, 124 A.3d at 1245.        I dissented from the

majority’s determination that undue prejudice as to the issue of falsity could be

eliminated by a jury instruction that the opinions could only be considered for purposes

of malice, at least in the context of a unified trial – that is, a single trial involving both

questions. See id. at ___, 124 A.3d at 1246 (Saylor, C.J., concurring and dissenting).


1
  In Castellani I, see Castellani v. Scranton Times, L.P., 598 Pa. 283, 956 A.2d 937
(2008) – also part of the same litigation – the Court considered whether the identity of
the Newspaper’s confidential source had to be disclosed.
Thus, if left to my own devices, I would presently approve the Superior Court’s holding

that redaction of various newspaper articles is necessary to the extent they quote or

otherwise reference the Garb and Feudale opinions.

       Nevertheless, I was in the minority in Castellani II and, as such, I agree that

precedent requires vacation of the Superior Court’s order in the present appeal.

Furthermore, since the intermediate court’s decision concerning the need for redaction

was based in large part on a holding which has now been reversed, it seems likely that,

on remand, the intermediate court will need to reach a different conclusion on the

redaction issue in order to remain consistent with Castellani II.

       As part of my responsive expression in Castellani II, I noted that bifurcation of the

trial could “go a long way toward eliminating any unfair prejudice that the Newspaper

would otherwise suffer from introduction of the [Garb and Feudale] opinions.” Id. In

response, the majority suggested that any bifurcation request would be “appropriate for

the trial court upon remand if requested by the Newspaper.” Castellani II, ___ Pa. at

___ n.13, 124 A.3d at 1245 n.13. I would observe, however, that: the Newspaper

previously requested bifurcation at the trial court level; the request was denied; and the

Newspaper’s challenge to such denial was one of the issues it raised before the

Superior Court in the present appeal. See Castellani v. Scranton Times, No. 1145 MDA

2012, slip op. at 15-20 (Pa. Super. June 10, 2014). Notably, that tribunal chose not to

reach the merits of the issue based on its determination that the articles had to be

substantially redacted. See id. at 34. On remand, therefore, the bifurcation issue will

again be pending before the Superior Court. In this regard, to the extent the Castellani

II majority’s expression can be read to indicate that a second request for bifurcation

must now be made by the Newspaper and ruled on initially by the trial court, it was

dicta, as the bifurcation question was not before the Castellani II Court.


                                    [477 MAL 2014] - 2
