*1
JUDGMENT
WHEREOF, it is hereby ordered
ON CONSIDERATION
of the Court of
this Court
Order
adjudged
County
Pleas of
is affirmed.
Common
Lebanon
Superior Pennsylvania. Court
Argued Sept. 1987.
Filed June 1988. Aug. Reargument Denied generally expense the DRHO do come and statements offered to light parties’ extraordinary expenditures incomes.” reflect *4 appellant. for Pittsburgh, N. Egler, Frederick appellees. M. for Berger, Pittsburgh, Daniel CIRILLO, Judge, and President JOHNSON Before MONTGOMERY,JJ.
CIRILLO, President Judge: The libel action underlying appeal stems from the publication of an article in the September 1979edition of appellant’s newspaper, the Pittsburgh Post-Gazette. Appendix. See The suit was tried Court of Common Washington Pleas of County sitting by agreement of the parties and counsel in neighboring Westmoreland County. The Mihalich, Gilfert M. Honorable Judge President Westmoreland County, presided by special appointment. trial, Following lengthy the jury general returned a verdict in appellees, favor Richard DiSalle and Joan DiSalle, wife, his $210,000.00 the combined amount of $2,000,000.00 compensatory and punitive damages. The Post-Gazette filed timely relief, motions for post-trial the trial court denied after a thorough and well reasoned discussion of the seeks, case. Here the paper in the alter- native, a judgment veredicto, non trial, obstante a new or a damages. remittitur of
The appellant urges upon us three categories of error committed trial court which entitle it to the relief (1) sought: error concerning the constitutional “actual mal- ice” applied; (2) standard to be error concerning award of compensatory (3) damages; and error concerning the punitive award of damages.1 We affirm. in question article appeared the “City/Area” sec-
tion Post-Gazette, paper with a daily readership Questions appellant’s 1. The Statement of the Involved frames the issues as follows: I. failing grant judgment Whether the trial court erred in not- withstanding the verdict under the constitutional "actual malice” Time, Pape? standard enunciated in Inc. v. II. failing Whether the trial court erred in jury to instruct the on the Time, "actual Pape, malice" issue under the Inc. v. standard? III. permitting jury Whether the trial court erred in to assess damages present and future harm? permitting IV. Whether the jury trial court erred in to assess punitive damages? failing V. Whether jury the trial court erred in to instruct the as to punitive damage limitations on the required Pennsyl- award under vania Law and the First Amendment. VI. failing Whether the trial court erred in to set aside the damage verdict. *5 in Family’s Heats 200,000, under the title “Feud nearly first Inheritance.” matter was for Million Battle $8 staff when of the Post-Gazette to the attention brought editor, city Dave War- called assistant Ciaffoni Robert embroiling family his dispute a then ner, to inform him of in Ciaffoni, had father, Paul who died of his the will over Porter, Tom assigned reporter, a Mr. Warner 1974. potential story. for investigate the his source stop, ultimately principal Porter’s first Mr. investigation, was Robert Ciaffoni. this of information fo- Ciaffoni, family dispute learned that the Porter From will, authenticity of the decedent’s on the cused He also learned that probate admitted to had been members, had taken the Ciaffoni, family as other as well an Washington by filing County to the courts contest had tried before matter been probate, that the appeal from Keim, appointed preside specially Earl the Honorable S. upheld had contest, Judge Keim and that over months six before Ciaffo- probated document validity before nearly year newspaper, ni contacted the published. article was context, DiSalle, attorney had a local who
In this Richard Washington on the trial bench of eight for years served vacancy on the common- later filled County, and who Shapp, was appointment of Governor court bench wealth sister, Elizabeth conspired with Ciaffoni’s alleged to have reviewing After Cowden, will. the fraudulent produce he noted what story, of Porter’s Warner early an draft give any explana- it did to be a hole considered conspiracy. in such a involve himself why tion DiSalle would concern, included Porter to address this attempt an deposition taken Robert from a later drafts material contest, will wherein Ciaffoni anticipation Ciaffoni concerning had made he prior asked about statements was In the Mrs. DiSalle and Cowden. relationship between single material, to a article, by then reduced final the reason impression left the reader with quote, a meretri- conspiracy DiSalle’s involvement in cious relationship with Mrs. Cowden. This issue was never *6 itself, raised during trial nor was the deposition intro- duced into evidence. allegations Ciaffoni, is,
These two made by Robert participated that Richard DiSalle in a fraudulent act and that he had an illicit affair co-conspirator, with a contained as they were an article that did not principally focus on the will contest which had occurred in Washington County earlier, much form the basis of this libel action.
I ACTUAL MALICE The Post-Gazette first challenges the definition of actual applied court, malice the trial asserting that a different standard should have been used under the facts of this case. paper Because the does not allege also prove evidence was insufficient to actual malice as the trial it, court defined arewe faced with the single question whether the trial court an committed error of law in defin- ing actual malice issue, as did. Before reaching this however, we must first determine the propriety applying the actual malice standard at all.
A. Applicability of Actual Malice
requirement
of proof of actual malice in certain
actions,
defamation
discussed more extensively infra, was
first
introduced
arena,
into the constitutional
where the
tension between the freedoms of the First Amendment and
manifest,
constraints of state defamation law is
Supreme Court
the landmark case of New York Times
Sullivan,
Co. v.
376 U.S.
84 S.Ct.
At time sitting on the Common- Richard DiSalle published, and and was by appointment Pennsylvania wealth Court Thus, his status term that court. full campaigning However, al- disputed. official cannot as a in the late to DiSalle occurred attributed leged misconduct approximately 1960’s, private attorney, he was a when on the vacancy appointment his ten before years blush, then, it appears At first Court. Commonwealth of the New York Times requirements the two one of only met, malice should proof of actual has standard been required. have been case, in which followed However, years as is often Times, factual decision New York Court’s *7 court’s statement high arose which tested scenarios 64, Louisiana, 379 U.S. 85 S.Ct. In the rule. Garrison (1964), Supreme Court reversed 209, 13 L.Ed.2d to apply refused Supreme Court decision which Louisiana criminal prosecution in a for Times rule New York expressions The reasoned that defamation. state court of criticism of purview within the at issue did not fall integ- personal on the the attack was official conduct when any on the one rity judges way trial and not eight state in session. his court when them conducted court, Brennan, found this opinion in his for Justice defective: reasoning public-official protects paramount public rule people of information to the in a free flow
interest
officials,
end,
To this
concerning
their servants.
public
for
official’s fitness
might
touch
an
anything
are more
personal attributes
is relevant. New
office
malfea-
dishonesty,
for office than
germane to fitness
sance,
motivation,
though these charac-
even
improper
character.
private
also affect the official’s
may
teristics
omitted).
(footnote
Garrison,
379 U.S. at
S.Ct.
401 U.S.
91 S.Ct.
Roy,
Patriot Co. v.
Monitor
(1971),
was asked
Supreme
Court
L.Ed.2d 35
“official conduct”
what constitutes
question
revisit the
determining when the New York Times rule is to
ap-
There,
plied.
plaintiff
a civil libel action sought
recovery for a statement made during the course of a
political campaign that
the candidate was a former small-
time bootlegger. The trial court recognized that
the plain-
tiffs candidacy
public
office made him a public figure,
but left it to the jury to determine whether
the expression
attacked official conduct rather
private
than
conduct. The
reversed,
Court
finding that
the broadening of
official conduct
to that conduct which reflects on an offi-
cial’s fitness for office applies with special force to candi-
dates. Roy,
U.S.
The court that, went on to note “[ijndeed, whatever utility the ‘official conduct’ concept may retain regard to occupants office ... is clearly of little applicability the context of an election campaign. The principal activity of a candidate our political system, ‘office’, his so speak, consists putting before the voters every conceivable aspect of his public and private life that he thinks may lead the elector- him____ gain ate to good impression of And the candidate who spotless vaunts his record and sterling integrity cannot convincingly cry ‘Foul!’ when an oppo- nent or an industrious reporter attempts to demonstrate the contrary. Any test adequate safeguard First guarantees Amendment in this go area must far beyond ” *8 the customary meaning of the phrase ‘official conduct.’ Id.
Judge DiSalle, at the time the Post-Gazette article was published, was the holder position of a in public trust and a candidate to in continue that role. This factual situation was presented to the Supreme Ocala in Court Star-Banner Damron, Co. v. U.S. 91 S.Ct. (1971), L.Ed.2d 57 decided on the same day as Roy. reasserting the position in Roy, taken court stated “that a charge of criminal against conduct an official or a candi- date, no matter how remote in time place, or is always ‘relevant to his fitness for office’ purposes for of applying falsehood or reckless knowing rule York Times New Co., 401 U.S. the truth.” Ocala Star-Banner disregard 91 S.Ct. at statements focused two action libel Judge DiSalle’s he article, that was a asserting the first in the Post-Gazette his fraud, attributing par- and the second co-conspirator co-conspir- an affair with his in that fraud to illicit ticipation course, falls Fraud, of crime therefore a ator. in a Participation rule. above-stated squarely within the criminal, does, not under affair, strictly while meretricious motivation, and case, impute improper an of this facts for Judge fitness office. is relevant to DiSalle’s therefore public we that Richard DiSalle was Accordingly, conclude that published article official at the time the was thereon related to official offending expressions contained Philadelphia Newspapers, McLaughlin conduct. Cf. (1975) Inc., A.2d access to (press 465 Pa. proceeding brought disciplinary confidential records of a office, may against private lawyer, now public’s qualifications interest spite limited servants; it from distinguished the facts before its court here). upon cases like those relied B. Actual Malice recover in being cannot It clear DiSalles convincing absent clear and evidence defamation defamatory published article was allegedly Post-Gazette’s malice, must determine that term with actual now what we Court described the genesis, At its means. publication with actual malice as publication material dis knowledge it false with reckless “with was Times, false or not.” New York regard of whether it was 279-280, 726. As was true with the 84 S.Ct. at U.S. above, the full of “official conduct” discussed meaning case-by-case devel definition of “actual malice” has awaited definition, that the part first opment. Clearly the “knowledge that published information was either knows or false,” present difficulty, not one does concept true. something does know is not It is *9 520 disregard
of reckless
which “cannot
fully
be
encompassed
in one infallible definition.” St. Amant v. Thompson, 390
727, 730,
1323, 1325,
U.S.
88 S.Ct.
(1968).
St.
at
U.S.
Instantly, following manner: of actual malice newspaper the Defendant knew malice means that Actual publish- false when it defamatory statement was reck- statements with defamatory it or published ed false or true. This they of whether were disregard less by clear and the evidence must establish means that or defamatory statement evidence that convincing published any defamatory statement entertainment was false or the knowledge Negli- of the statement. to the truth serious doubt as in the carelessness, inaccuracy or judgment bad gence, prove actual article is insufficient preparation not establish investigate does malice. The mere failure negligence, negligent nor disregard, does mere reckless reckless conduct which malice. The acts constitute actual disregard is not or a recklessness reckless constitutes prudent man would whether a reasonable measured investigated publish- before would have published have or permit must be sufficient evidence ing. There Defendant, fact, entertained serious conclusion that the publication. Publications as to the truth of doubt disregard to the truth show reckless with such doubt actual malice. this demonstrates falsity, and charge R.R. at 1735a-1736a. This clearly states the rule as developed we have it above. charge continued:
Actual
interpreted
malice has been
as an
depar-
extreme
ture from the standards of investigation and reporting
ordinarily
by responsible publishers.
adhered
If you
find from the evidence that
the Defendant newspaper
departure,
made such an extreme
then you may find in
considering this evidence that it acted with actual malice.
R.R. at 1736a. This interpretation of actual malice was
rendered in Brophy
Philadelphia
Inc.,
Newspapers,
Pa.Super.
(1980)
A.2d
upon
and relied
*11
Justice Harlan’s
plurality opinion Curtis Publishing Co.
Butts,
130, 155,
1975, 1991,
v.
388 U.S.
87 S.Ct.
18 L.Ed.2d
(1967)
(joined by three other justices). Chief Justice
Warren,
separate
in a
opinion, criticized the creation of a
“highly
standard based on
unreasonable conduct” as being
departure
from New York Times and too uncertain to aid
in the
purpose.
effectuation of its
Curtis
Publishing,
(Warren,
C.J.,
U.S.
C.
Inc.
Pape
Post-Gazette, however,
The
urges that
this defini-
while
tion of actual malice is correct
typical
for the
defamation
case,
ignores
certain salient facts in this case which
should
put
have
the trial court on a different path away
from New York Times in search of the proper definition of
actual
applied.
malice to be
In support of this assertion the
appellant
Time,
relies
on
heavily
Inc. v.
401 U.S.
Pape,
(1971).
91 S.Ct.
When trial was finally
in,
Time’s motion for a
granted
the District Court
was
reversed,
Appeals
holding
directed verdict.
Court
Time’s failure to at-
jury question
that it was a
whether
rather
charges against Pape to Monroe
than
tribute the
showed actual malice. The
Court
Commission
that the directed
Appeals, holding
reversed the Court
result,
properly
supporting
was
entered.
verdict
Time
emphasized
reporting
repeatedly
Court
but, instead,
“Justice,”
on the historical events described
*12
distinction,
itself. Based on this
reporting
was
on “Justice”
ques-
the
court’s
of the
analysis
the Court criticized
lower
adequate
of
as the kind
be
when
“may
tion malice2
alleged
an
or other
purports
eyewitness
the
libel
themselves,”
speak
Pape,
direct account of events that
for
that:
explaining
91 S.Ct. at
U.S. at
According
Supreme
the
Court:
Appeals
that it
obvious that the omis-
The Court of
concluded
was
"allegation"
equivalent
some
was a “falsifica-
sion of the word
or
admittedly
Report.
omission
conscious
tion” of the
Since the
deliberate,
only remaining question in the court’s view was
and
the
in the
of an “intent to inflict
whether there had been “malice”
sense
intent,
might
thought,
through
an
court
harm
falsehood.” Such
the
omission,
very
reasonably
act
and
be inferred from the
of deliberate
jury.
consequently
the
the
of malice was
one for
issue
Pape,
The
Court’s
rather
understanding
Report,
Time’s
of the Commission’s
found
allegations,
easily
Monroe’s
than
substance of
it,
and far removed from
in the nature
the case before
malice. Before
hybrid
the creation of a
definition
actual
noted that the
discussing
applied,
the law to be
Court
it
in a number of
from the
respects
case before
differed
conventional libel case.
distinction relevant
alleged
discussion concerned
source of the
present
damage
reputation,
observing
the Court
“was
resulting
arising from mere
but rather that
publication,
of the Monroe accusations to an author-
from attribution
*13
official source.”
It in context, then, was this explained Court its earlier concerning statement the difficulties of determining “truth” indirect newspaper reports: In light of the totality Justice, of what was said we cannot agree that when Time failed to state that the Commission reporting the Monroe incident has techni- cally confined itself to the allegations complaint, of a Time engaged in a “falsification” sufficient in itself to sustain a jury finding of “actual malice.”
[*]
[*]
[*]
#
#
#
Time’s omission of the
“alleged”
word
amounted to the
adoption of one of a
of possible
number
interpre-
rational
tations of a document that bristled with ambiguities. The
deliberate choice of
interpretation,
such an
though argu-
ably reflecting a misconception, was not enough to create
a jury issue of “malice” under New York Times.
289-290,
Id. at
From incorporating malice of a new definition of actual the birth interpretation report- into all indirect concept of rational case, lieu cases, including publish- the instant in ing underly- falsity probable awareness subjective er’s to effect can be attributed sweeping No such ing facts. in the of was There, complained the defamation Pape. report upon to the and was unrelated facts underlying The Post-Gazette con- was based. publication which concerned the the instant case cedes that the defamation in a co-conspirator DiSalle was a that Richard statements affair. he a meretricious fraud and that was involved defamatory injury is it contended that Nowhere accusa- newspaper’s from the attribution stemmed any other source. Robert Ciaffoni to tions to case, and this Pape between Even without the distinction language Pape however, not persuaded we are Dickey its facts. malice under own redefines actual (3rd Cir.1973), Third Circuit CBS, Inc., 583 F.2d similar argument confronted with an Appeals was Court of There, claimed appellant here. presented one “involving that cases proposition for the Pape stood publish a been by party third false statements [have] unique constitutional are entitled press, ed from reviewing language After analysis.” Id. at above, concluded the court considered Pape which we was stating that Time purpose “the Court’s proving rights charging civil abuses because with the him inaccuracy promised knowing or reckless published with Time theory By changing one of attribution task. formidable Commission, sought apparently Rights Pape what charge to the Civil lighter burden. perceived to be third party appears merely from a to have been quoting com- difficulty accurately interpreting emphasize municating party’s meaning quoting a third without a third statement in its Id. In the form of a party’s entirety.” as to the effect of on the Pape more concise statement malice, of defamation and actual the court in jurisprudence Pharmaceuticals, Inc., 800 F.2d McBride v. Merrell Dow & (D.C.Cir.1986)noted: might That a statement have been made without actual malice does not demonstrate that it was fact so made. *15 of Ambiguity subject may proba- a statement’s matter be negating malice, a finding tive evidence of actual see 279, Time, 290, 633, v. 401 Pape, Inc. U.S. ... S.Ct. [91 it does not call forth a presumption but conclusive 639] resort to actual evidence of the defendant’s precluding state of mind. (emphasis original). at 1212 in
Id.
if the
agree. Surely
Supreme'
Pape
We
Court
had
intended to announce a unique
analysis
constitutional
for
cases,
Instead,
reporting
indirect
it would have said so.
above,
of
applied
definition
actual malice we stated
that,
determined
to Time’s inter-
“[a]pplying this standard
pretation
Report,
of the Commission
it can
said
hardly Time
disregard
acted
reckless
of the truth.” Pape,
292,
added);
401
(emphasis
U.S. at
91
at 640
see also
S.Ct.
Time,
Firestone,
448,
4,
958,
Inc. v.
U.S.
459 n.
96 S.Ct.
967,
(1976) (“Petitioner
argu-
a judgment
like the
prominent organization
responsible,
[W]hen
charges against
Society makes serious
National Audubon
accu-
protects
Amendment
figure, the First
*16
charges, regard-
of those
reporting
rate and disinterested
regarding their validi-
private views
reporter’s
less of the
S.Ct.
...
Time,
Pape,
Inc.
U.S.
ty.
v.
See
[91
(1st Cir.1971).
Time, Inc.,
Primer,
and W.
Hand
1362 n. 46
Va.L.Rev.
1971),
Torts,
(4th
analysts
later
64a
ed.
Law
n.
book
of
of
Amendment,
Sowle,
First
exposed
See
and the
the error.
Defamation
supra note
at 502.
by
assigned
the rule
reportage”
is the moniker
6. "Neutral
court,
we will use.
It should
and is the one
F.2d at
Edwards
however,
noted,
as the
been referred to
rule has also
be
report.
privilege
republication and
of fair
privilege
of accurate
rule,
In
Edwards,
support
afforded its created constitutional reportage, point neutral the court went on to inexplicably that, special out protection “absent afforded neutral Time, reportage, Pape, supra,[7] see Inc. v. the evidence adduced at trial was manifestly insufficient to [nonetheless] Times,” part id., demonstrate ‘actual malice’ on the if and to conclude that “even the Times were required to accusations, assume direct for the responsibility it could not, Sullivan, consistent with New York Times Co. v. (footnote supra, be found liable defamation.” Id. at 121 omitted). reasoned, Having so the court im undercut the portance theory reportage its new of neutral render ing it dictum.
However, the has relied exclusively Post-Gazette on this we, therefore, theoretical appeal give defense its will analysis. Having point, it further reached this we should appellant’s argument note how the limits the issue before expression reportage us. The Edwards of the neutral rule the common essentially privilege seeks to credential law stature, report8 telling fair with constitutional with some differences not relevant here. The Post-Gazette has been argument careful to distance its from the common law privilege challenge charge and does not the trial court’s out, already pointed Pape 7. As we have this reliance on for the special privilege inappropriate. creation of the (Second) (1977) privi- 8. The § Restatement Torts defines this lege as follows: publication defamatory concerning matter another in a *17 report proceeding meeting open of an official action or or of a public public privileged the that deals with a matter of concern is if report complete abridgment the is accurate and or a fair of the reported. occurrence challenge nor it report,9 rule of fair does the common law abused. finding privilege that the had been the jury’s of the common Therefore, need not consider the issue we privilege. law not chal- the has also reassert Post-Gazette
We on malice defined charge court’s actual as lenged the trial Sullivan, supra, v. by New York Times progeny, and its evidence of the challenge sufficiency does it the nor fact, case. as finding of actual malice this support infra, reportage need for the neutral developed the will be the in those circumstances where only is manifest doctrine the protected by not constitutional already defendant Therefore, proof of actual malice. requirement doctrine, the Post- reportage on the neutral solely relying mal- admitting the existence of actual implicitly Gazette is the trial court failed to error is that only alleged ice. The jury the reportage charging doctrine consider the neutral Therefore, deciding judgment the motion for n.o.v. is the to the Post-Gazette availability of doctrine remaining issue we will address.10 liability only brief, trial Post-Gazette notes that the five of its In footnote privilege charged question law jury of the common on the court (the as law rule one of "fair report refers to common fair comment", footnote relying judge’s term in the trial use apparently on however, privilege of free charge; refers to “fair comment” his concern, opinion see Restatement expression on matters (1977) (Second) “fair correct name is 566 comment § of Torts —the allege 5. It does not that the report”). Appellant at n. Brief for error, charge giving charge substance of of this was Rather, may well given "that the trial court asserts was incorrect. Time, protection afforded under the First Amendment have viewed roughly equivalent to common law 'fair comment’ Pape, v. as Inc. Time, Pape, an on Inc. privilege instruction therefore] ... [and charged law unnecessary jury was on the common since the privilege.” Id. attempts the two to demonstrate that of the footnote The balance different, scope protections notably privileges in the most are weigh respectively defendant. We need they afford libel two argued between the distinctions of the Post-Gazette’s merits however, argued to us. We has not been privileges, because this issue purpose of appellant’s for the sole demonstrat- highlight footnote liability appeal. ing issue the limited nature reportage argument of the neutral in favor 10. In course its however, to three makes brief reference privilege, Post-Gazette
531
attention,
has not
to our
nor has
appellant
brought
The
disclosed,
deci-
independent
any Pennsylvania
our
research
discussing
privilege
the existence of a constitutional
sions
from
reportage
protect
liability
of neutral
would
reports
defamatory
media defendant which
statements
figures,
republisher’s
against public
regardless
made
of the truth or
of the accusa-
subjective
falsity
awareness
Communications, Braig
tions. But see
v. Field
Pa.Su-
denied,
allocatur
569, 587,
1366,
(1983),
456 A.2d
per.
First,
allegations of trial court error.
it asserts that the trial
related
compounded
limiting
judge
his error
instruction to the tradi-
his
"knowledge
disregard
falsity
for truth” standard
tional
or reckless
"republication
by instructing
of actual malice
on the common law
brief,
quoted
charged
jury
rule.” As
in the Post-Gazette’s
the court
"
newspaper
repeats
republishes
‘A
or otherwise
false
as follows:
defamatory
subject
liability
originally
if it
matters is
to
as
had
it____’ (R.1735a)”
By relegating
published
Appellant
Brief for
at 29.
charge
ellipsis,
rest of the court’s
to an
the Post-Gazette has taken
extremely misleading.
quote
Put into
out of context and made it
context, the entire sentence reads as follows:
repeats
republishes
newspaper
false and defam-
A
otherwise
it,
originally published
atory
subject
liability
matter is
to
as if it had
publication
privileged,
explain
is otherwise
and I will
unless
privilege
my charge.
possible application of
later in
giving
charge.
Clearly
R.R. at 1735a.
the trial court did not err in
that,
Additionally,
argues
the Post-Gazette
in footnote six of its brief
defamatory
the source of the
material contained in its article
because
contest,
allegations
complaint
right
republish
in a will
its
to
protected by
principle
reportage
both the
of neutral
should
privilege
report public
information. Cox
"the broad constitutional
1029,
Cohn,
469,
Broadcasting Corp. v.
420 U.S.
S.Ct.
Where knowledge its or with defamatory falsity material with in a regard, doubts that fundamental subjective serious given must to the source of accordingly be consideration Where, alleged are tortious. allegations which be the 7%c.[11] Edwards, as in Time the sources are official report private records or the of a renowned governmental institution, rely on the mate publisher may justifiably the the must insure that only contained therein and rials which fairly reasonably distills that re-publication not original report. in sources do contained the Such Thompson, which the St. Amant [v. flags” raise the “red (1968)[12]] S.Ct. L.Ed.2d 390 U.S. 262] [88 Time, holding Supreme in distinguished the Court Inc. 11. We have Pape grounds the reliance on the Pape, supra, on other than Court’s defamatory It credibility the information. of the source of inherent unnecessary us to the Post-Gazette’s will address therefore argument be suggest language the Pape that that there is no particularly report reli- Supreme Court considered the commission able. malice, the trial relied developing actual court 12. In its definition of protestations proposition a defendant’s on St. Amant for the published the must be tested in the of the statements belief truth good that belief was formed in of fact to determine whether finder faith, Amant, and observed: 88 S.Ct. at St. 390 U.S. good could that an absence faith Court has noted [T]he defendant, story the was fabricated determined where be imagination, upon or was based represented product of his anonymous Additional- unreliable information. some or otherwise inherently improbable that allegations may so ly, be themselves Furthermore, only publisher circulate them. a reckless would case, may given be obvious reasons particular there facts of accuracy his veracity of informant or doubt the reports. prove can more identified, and, plaintiff unless Court publisher’s knowledge part on subjective particular are not to be credible sources such otherwise [sic] inferable. readily is not believed, malice actual omitted). The court then (footnote 14p. Opinion Trial Court case, of this in the context “[c]ertainly, concluded source of infor- not considered a could Ciaffoni Robert Rights the United States Civil competent mation as as Id. at 18. Society.” Audubon or the National Commission did not that Edwards court determined For this reason the Post-Gazette. assist appears language Edwards
This reliance
where the source
result
to situations
limit its
orga-
responsible, prominent
is “a
defamation
republished
Edwards, 556
Society,”
National Audubon
nization like the
trial court.
Cianci v.
unique
F.2d
Cir.1980),
(2d
Co.,
Trial Court referring. flags” judge is which the trial language in Edwards initially whether the may seem uncertain It merely descrip- to be limitations or to create doctrinal was intended Comment, Constitutional particular case. See facts of the tive of Defamation, 1275- Privilege Republish 77 Columbia L.Rev. Kaufman, However, (1977). Judge the author of when Chief rehearing Edwards, deny a in Cianci to in the decision concurred banc, Cianci, apparent F.2d at it became en before the court panel Although that "the [in he observed the former. that he intended I would have always Edwards in the terms not discuss Cianci does ] chosen," id., opinion in Cianci was that he was content Edwards. inconsistent with responsible, prominent orga- that “when statements makes serious Society like the National Audubon nization the First against public figure, Amendment charges of these reporting the accurate disinterested protects re- regardless reporter’s private views charges, is newsworthy that about garding validity”; their “[w]hat made”; they that were that these accusations “[t]he being informed such contro- fully interest in about demands that that around sensitive issues rage versies charges the freedom to such press report be afforded them”; responsibility for that while assuming without immunity from defamation suits provide must where “we believes, that reasonably good faith journalist charges made ... accurately conveys his report [i]t however, fact clear, publisher that a who in equally or charges in the made others espouses concurs statements to launch a distorts these deliberately who public figure, rely cannot attack of his own on personal rather “assumes reportage” on a of neutral but privilege accusations”; that responsibility underlying for the maligned outraged scientists’ “published had Times Society’s in the article that contained reactions same of fair and attack”; exemplar article “the but news- of an unfortunate dispassionate reporting believe contretemps”; and worthy “[w]e First cannot, consistently with the New York Times for the Amendment, judgment a libel be afflicted with aby made newsworthy accusations reporting accurate organization like National responsible and well-noted 120-22. 556 F.2d at Society.” Audubon omitted). The court (footnote F.2d 68-69 Cianci, 639 fulfills almost Times article then New observed “[t]he *21 Edwards," id. at and laid none of the conditions down in this case that enough “it for decision concluded that is simply Times did not well find that the New jury could them____” charges espoused or concurred report the but Id. holding republish- court bottoms its on the
Although the made, charges the we are not apparent adoption er’s to only placed read the limitation be constrained to this as discussing After how the evidence could be on Edwards. the court made espousal charges, an of the read to indicate statement: following the the careful limitation of a constitutional
The need for is reportage by for fair demonstrated privilege defense, immunity of that which confers even breadth Absent the statements believed be untrue. publishing set Kaufman in Ed- by Judge forth Chief qualifications wards, media have all elements of the would absolute espouse and concur the most unwarranted immunity figure, attacks, upon public least official or based any long persons and known episodes past by made this, although any And without reliability. to be scant generous immunity, already such media enjoy protection accorded New York Times Co. Sullivan by or statements of fact respect opinion. erroneous
Id. at 69-70. language
It is from the and clear Edwards Cianci neutral is limited and condi privilege reportage both tional, is, if may lost its terms are followed. Publishers, Inc., 442 Pa. Triangle Binder v. (“A (1971)
A.2d is one that can be qualified privilege abuse”). Drawing language quoted by lost from the then, A court, can be as follows: the rule stated Cianci charges of a publish serious reporter privileged is (either organization an responsible, prominent entity individual, as there no reason to believe Edwards distinction) raging in a controver court intended a involved irrespec concerning public figure, and official or sy falsity charges, as to the publisher’s tive of the belief espouse or concur in the reporter does not provided believes the charges good faith reasonably Therefore, charges made. report accurately conveys following is determined privilege entitlement defamer; (2) the (1) the charac-2 elements: character *22 536 (3) of the controversy; the character de-
ter
through
depending
is lost
abuse
privilege
famed. The
Comment,
See
Constitu-
the republication.
the nature of
13, at 1275-1281.14
Privilege, supra, note
tional
as
reportage
the neutral
doctrine
applying
courts
Other
Edwards.
limited
privilege
similarly
have
constitutional
Newsweek, Inc.,
626,
See,
(1977)
e.g., Dixson v.
562 F.2d
631
(the
figure);
official or
party
public
defamed
must be
Inc., 631
Broadcasting Companies,
v. American
Lasky
(S.D.N.Y.1986) (tracks Cianci);
Bar
962,
F.Supp.
970-971
Time, Inc.,
1110,
(N.D.Ca.1984)
F.Supp.
1127
v.
584
ry
existing
in an
controver
(defamed
public figure
is
involved
Co., Inc.,
Doubleday
McManus v.
&
defamer);
with the
sy
1383,
(S.D.N.Y.1981) (limits
preexisting
1391
F.Supp.
513
reporting);
public
apply
investigative
controversies —not
Service, Inc.,
Printing
v. Keystone
Ill.App.3d
155
Davis
324,
17, 28,
1358,
(1987)
Ill.Dec.
507 N.E.2d
1369
309,
108
must
(defamed
figure and defamer
must be a
v.
person); Martin
Publish
Wilson
prominent
responsible
Co.,
322,
(R.I.1985) (defamer
must be
497 A.2d
330
ing
For additional cases
prominent responsible organization).
Reportage,
Neutral
Developing Privilege
The
Note,
see
(1983).
nn.
We are trou
853, 864-865
60-62
69 Va.L.Rev.
formulation, however,
apparent
because
by
bled
this purported
foundation for
of a constitutional
absence
privilege did
appears
not
to have held
14. The Cianci court
espoused
jury
report
found
to have
because the
could be
arise
This,
seems, put
charges.
it
the cart before the
or concurred
horse;
deciding
privilege was
before
court decided that the
abused
However,
whether,
fact,
in terms whether the
ever attached.
privilege,
is one
this observation
will be aided
defendant
defeasance,
semantics, for,
through
or never
it is lost
pure
arises,
whether
But,
practice, the observation
in terms of
is of little moment.
privilege
Pennsylvania,
question
important.
whether a
In
is
court,
is one for the trial
Smith v.
applies
a defamation action
22,
(1984) allocatur
Griffiths,
Pa.Super.
476 A.2d
25
denied,
jury
privilege has been
whether a
it is for the
to determine
but
570, 604,
Walter,
Pa.Super.
A.2d
Sprague v.
abused.
(1987).
(1986)
granted,
A.2d 495
514 Pa.
allocatur
judice,
question
sub
we
light
in the case
our resolution of the
In
time, leaving it
present
expand
at the
on this discussion
need
appropriate set of facts.
development
court
faced with an
when the
is
conun-
explain
To better
our
protection.
Amendment
First
rejected
have expressly
to cases which
turn
drum we
rule.
Dickey
in this
leading
category
federal case
Cir.1978).15
(3d
Inc.,
Dickey,
CBS, *23 grounds on the adopt to Edwards court refused Supreme Court contrary was to established stated doctrine The refusal centered on Edwards precedent. court’s dis- publisher’s reckless lack of concern for court’s and concluded liability, the truth and its effect on regard of that, there can be no the Second Circuit found that
[wjhile
as to the
despite
publisher’s “serious doubts”
liability
truthfulness,
Thompson,
St. Amant
Id. expression court concluded that Edwards Dickey Supreme also afoul of reportage privilege of neutral runs for the trigger as the when it establishes precedent Court “newsworthy” of a protection publication constitutional on the Using n. 5. standard based statement. Id. 1226 determining the constitu- of the statement for when content citizens from protect limit the its powers tion will States’ falsehoods, argues, expressly the court was defamatory Welch, Court Gertz v. Robert rejected by 323, 2997, 3010, 41 789 346, L.Ed.2d Inc., 418 U.S. 94 S.Ct. denied, Time, (3d Inc, Cir.) U.S. 134 cert. 454 In Medico v. 643 F.2d 139, (1981), 836, held that 70 116 the court 102 S.Ct. L.Ed.2d dicta, thereby was Dickey refusal follow Edwards stated court’s viability reportage circuit leaving question of neutral in this of the However, observed, have the rule itself open. Id. at 145. as we circumstances, giving the similar we are given life under because questionable nascency, see spite its we consideration in rule serious differently. any treat its critics no reason to 538 (“The or test ...
(1974)
‘public
general
inadequate
interest’
Accord
stake”).
competing
values at
serves
ly
both
Corp.,
Area Publications
452, 463,
Makis v.
Ill.App.3d
77
812,
(1979) (Romiti, J.,
804,
1185,
N.E.2d
1193
Ill.Dec.
395
32
if the defamation concerns
(“[I]t is not sufficient
dissenting)
general
matters of
persons
involved
private
Co.,
v.
Hogan Herald
470,
477, 446
concern.”);
84 A.D.2d
aff'd,
630,
538,
N.Y.2d
N.Y.S.2d
N.Y.S.2d
(1982) (“Presumably,
publications
all
Although conclusion deciding in step it is the first redundancy argument, merely and its runs afoul New York Times whether Edwards of to protection Amendment For this broader First progeny. stand, other must be found than a basis the Constitution of malice. Oth- requirement that actual justifies must fail erwise, privilege reporting of neutral because struck upset already Supreme it the balance would freedoms of protecting expres- our constitutional Court protecting countervailing sion state interest and reputation. of necessary of actual malice was deemed because
Proof
to
that
principle
our
national commitment
“profound
uninhibited, robust, and
public
on
issues should be
debate
vehement, caustic,
may
it
include
wide-open, and that
well
sharp
government
attacks on
unpleasantly
and sometimes
Times,
270,
at
officials.” New York
376 U.S.
public
statement,
721. Even the occasional erroneous
S.Ct. at
debate,
protected if
free-
in free
“must be
inevitable
‘breathing space’
are to have the
expression
doms
”
271-272,
In Herbert reasserted the (1979), Court L.Ed.2d malice when refused protections of the actual breadth if decisionmaking editorial acknowledge chilling effect on inquire allowed to into are plaintiffs defamation that, defendant, noting “if processes editorial *26 liability of damages flows from the fear inhibition claimed falsehoods, effects or reckless those knowing publishing for have and other cases what York Times New precisely are Spreading the First Amendment. to be consistent with held Amend- carries no First information and of itself false clear, It is 99 S.Ct. 1646. credentials.” Id. at ment protect which seeks to then, reportage, neutral that falsehoods, upset would indeed knowing publication on the actual malice scale. placed if balance a foundation provide constitutional attempting court on the rationale the Edwards relied reportage, neutral know,” noting by need to that “public’s “[t]he that being informed about controversies fully interest press issues demands that the rage around sensitive often charges report [defamatory] the freedom to afforded be Edwards, 556 for them.” assuming responsibility without However, from the the court distanced itself F.2d at 120. malice when it stated behind actual standard rationale made charges about newsworthy [serious “[w]hat public figure] is that organization against prominent made,” id., constitutional finding the they thereby were and his the statement in the nature of the defamer value of controversy, the status relationship person defamed. that, compelling reach this for the reason
We conclusion defamed, struck if focus was on the the balance party if not There- malice would offended followed. by actual be fore, protected repor- neutral speech which is to be itself, speech defamatory is not the falsehood but tage convey certain individual required to the information De- particular charge. in a made a controversy involved in this to ex- scribing protected speech helps manner awareness why, reportage, subjective with neutral plain is false becomes republisher the statement hearsay An drawn to rule may be analogy irrelevant. is offered to Where the out of court statement of evidence. statement, it truth of matter asserted in the prove the excluded; if fact that the statement was will but truth, it will be independent its significance made has n. See, Note, at 867 Reportage, supra, Neutral admitted. *27 significant “no statement is the belief that Recognizing speaker the if the identity it is said unless merely because Comment, Constitutional special significance,” some has return to our note we now supra Privilege, repor- statement of the neutral the Edwards concern about noted, Edwards, and As we have Cianci tage doctrine. relia- Edwards, prominence focused on the interpreting the defamer to determine whether original of the bility apply. should Neither of reportage of neutral protections criteria, however, related to the First sufficiently are these republished the def- protecting interests Amendment privilege. constitutional serve as the basis for a amation to speaker that a is known to be reliable The mere fact words to constitutional person’s not sufficient to entitle knowledge that the irrespective reporter’s protection fact, neutral reportage is false. In because statement of statements known be protect publication intends to source is irrelev false, reliability totally of the purported speaker of a should Conversely, unreliability ant.16 For protection. his from automatically disqualify words Voice, Inc., F.Supp. Village example, Oliver v. Edwards, granted court (S.D.N.Y.1976), decided before of actual defendant on the issue summary for the judgment informant, that the plaintiff’s protestations malice over Hunt, Jr., inherently figure E. Howard Watergate making a unreliable, that “the mere fact of stating [Hunt’s] Watergate in the statement, position his given prominent defaming party reliability was deemed relevant 16. The disregard for determining publisher acted with reckless whether the genesis very of the actual published at the the truth of the statement Times, Court found malice rule. In New York good reputation "upon knowledge publishers’ their reliance sponsors of the advertise- many names were listed as of those whose Times, U.S. at New York ment ... was not unreasonable.” however, reportage, issue is not the S.Ct. at 730. In neutral falsity subjective that is assumed. publisher’s awareness of because supra. See Id. at 238. legitimate story.” news would be a controversy, standard, court Barry criticizing “reliability” a cogent of “a Time, Inc., policy noted the absence supra, on the basis of differentiating among defamers reason for Indeed, credibility. primary their trustworthiness in being fully public interest rationale of Edwards —the inconsistent with public controversies—is informed about Moreover, chilling it could create such differentiation. required if are press they members of the effect on the is.” how a source ‘trustworthy’ Barry, arbiters of F.Supp. at 1126.
However, prominence on the the Edwards court’s reliance furthering defaming party greater promise shows the free dissemination purpose protecting the rule’s noted, public issues. we have information about As falsehood no constitutional value and does defamatory has *28 However, if system self-government. our of enhance significance a speaker defamatory the of the falsehood has issue, controversy reporting to the at the of that falsehood of importance independent takes on an the substance of the For if state’s ac- example, governor falsely statement. of mayor major cuses the one of that state’s cities gives mismanagement, charge of this the reporting into character of their insight electorate a valuable state's official. top private advocacy group when a seeks role
Similarly,
shaping public policy,
strongly encouraged
a circumstance
charges by
group
in this
of false
country,
reporting
or
public
credibility,
will allow the
to define
itself
As
proposals
even
for reform.
desirability
group’s
Times,
Supreme
“[ejven
in New
recognized
Court
York
a false
deemed
make a valuable
may
statement
be
to
debate,
brings
since
about ‘the
public
contribution to
it
truth, produced
perception
impression
clearer
livelier
”
Times, 376
its
U.S. at
by
collision
error.’ New York
omitted).
(citation
279 n.
II COMPENSATORY DAMAGES by error category appellant The second raised permitting that the trial court was remiss asserts damages present for or future jury compensatory assess the trial discloses no evidence to even harm where record appellees suffering might were or suffer suggest that as a any present or future harm result article. issue, preserved by objec that this while appellees respond charge jury the trial and raised following tion court’s trial, appellant’s motion new was abandoned when in the argue the issue to the trial appellant failed brief for our We preserved court and therefore was not review. agree. 227.1, Pa.R.C.P. practice governed
Post-trial specific post-trial mention requires timely objection may post-trial motion before an issue be considered is to 227.1(b). The for this rule purpose court. Pa.R.C.P. afford trial court the to correct an error opportunity *30 546 made,
the time it is and to inform the court of the issues which must decided post-trial id., at the stage, Explan- 1983, atory thereby giving first opportuni- Comment— ty “to review and reconsider the determination it made at Ciao, trial.” by Gasper 490, 494, Weir v. 364 Pa.Super. (1987). A.2d
To fully effectuate the latter purpose, common sense mandates that issue any raised post-trial motion for relief must also be argued briefed and trial court. Thus, court, stating this after the requirements of rule 227.1(b), that, “[mjoreover, went on to note failure to set argument forth an in briefs filed the court in support of post-trial motions constitutes a preserve failure to the issue or issues not argued.” Bank, v. Bryant Girard 358 Pa.Su- 335, 344, per. (1986). 517 A.2d The appellant did not list as an issue in its in support brief of post-trial any challenge motions to the compensatory damages award- ed by jury, nor did the argument contained therein assert challenge such a in the context- of any related is- sues.17
This “deprived failure the trial court of both the need and opportunity to address the merits of [appellant’s] post- trial regard,” contentions Scarborough by Scarbor Lewis, ough Pa.Super. 62-63, 518 A.2d (1986), us, leaving court, as an appellate nothing review. We therefore appellant’s hold that the challenge to the compensatory damages award has been waived and may not serve as a basis relief.
Ill PUNITIVE DAMAGES The final challenge made appellant concerns the $2,000,000.00 award damages. This challenge appellees challenge 17. The also assert that a was not made to the compensatory damage during argument. award appellant oral transcript argument counters that no of the oral was made and conjecture. therefore Conspicuously, that such a statement is at best appellant the argument. does not further assert that it did raise the issue in oral court: of the trial part error on the levels of asserts two *31 allowing to assess jury erred first, the trial court that second, court all; that the trial and damages punitive damages punitive limit the amount of the to properly failed no We find error. awarded.
A. Liability trial should court argument In its pressing damages to the punitive the issue of submitted not have the standard all, asserts that the Post-Gazette jury existed was determining question jury whether applied rights under its constitutional protect insufficient court, deciding put the The trial Amendment. First damages punitive appropri considered jury, to the question common law malice were malice and only if both actual ate mal convincing Actual evidence. clear established “knowledge seen, publication involves with ice, as we have disregard whether with reckless it was false or that 278-279, Times, 376 U.S. at New York false or not.” malice, in context law at 725. Common 84 S.Ct. “ outrageous, involves ‘conduct damages, punitive indif his reckless motive or defendant’s evil because “is ‘ma others,’ which ... ‘conduct rights ference to ’ ” ‘reckless,’ ‘willful,’ ‘wanton,’ ‘oppressive’----” licious,’ 742, 383, 395, A.2d 747-748 Merriam, Pa. Feld (Second)of omitted) Restatement (1984)(citations (adopting when the given 908(2)). damages may “Punitive Torts § indifference, as, as well bad reckless is done with act Bank, N.A., 318 v. First National Delahanty motive.” (1983). 464 A.2d Pa.Super. sufficiency of the Post-Gazette, challenging standards,18 urges puni- of these evidence under either the evidence allowed when only be damages should tive intent to falsity and actual knowledge shows actual challenge disposed appellant’s opinion we I of this section However, put jury. in that malice of actual to the definition was insuffi- evidence appellant assert that the challenge, did not it has malice as of actual York Times statement cient to meet the New correctly trial court we determined evolved since articulated. that, harm. Its argument is by allowing the jury consid- recklessness, er is, reckless disregard of falsity reckless plaintiffs indifference to the rights, an award of punitive damages could be made based solely on such a determination, which would not sufficiently protect robust reporting. We find no basis this “actualness” standard law, logic. or in again our begin
We
analysis
the federal Constitution
because of the First Amendment issues involved. The
Supreme Court,
date,
United States
has not asserted any
constitutional constraints on the awarding
dam-
ages
to a
official in a defamation action.
In the
private
suit,
context of a
figure libel
the Court has directed
that, while liability may be decided by any standard which
*32
necessarily
fault,
involves a
of
finding
punitive damages
may not be allowed unless there has been “a showing of
of
knowledge
falsity or
disregard
reckless
for the truth.”
Welch, Inc.,
323, 349,
Gertz v. Robert
418 U.S.
94 S.Ct.
2997, 3012, 41
(1974).
L.Ed.2d 789
The rationale for this
recognizes
distinction
that the states have
“strong
legitimate ...
interest in compensating private individuals
for injury
reputation,”
348,
at
3011,
id.
94
at
S.Ct.
but
that “punitive damages are wholly irrelevant to
state
[this]
...,”
interest
and that “jury discretion to award [such]
damages unnecessarily
danger
exacerbates the
of media
350,
self-censorship.”
at
Id.
Although the Post-Gazette would have us read logic of Gertz as “pointing] ineluctably conclusion that punitive damages may never be awarded in defamation cases,” Brief Appellant 8, at 34 n. the concurring Blackmun, of opinion Justice who voted to join opinion of ground the Court on the that his vote necessary Gertz, create a majority, at U.S. S.Ct. at clearly indicates the contrary. Commenting on the court’s holding that actual malice must proven punitive before damages awarded, may be he concluded that “the court leaves what prove should adequate be sufficient and breathing space vigorous press.” for a Id. Further evi- dam- constitutionality punitive of continuing dence of the Brad- recently in Dun & in cases came ages defamation Inc., 749, Builders, 472 U.S. street, Inc. v. Greenmoss (Powell, J., (1985) announcing 86 L.Ed.2d S.Ct. court). judgment in found relevance in Builders plurality Greenmoss official involving public either Gertz,
the fact that while publication which touched involve figure, did public 757, 105 S.Ct. public concern. Id. upon matters Build- communication Greenmoss Noting (inaccurate concern purely private concerned matters ers the Gertz plurality applied reports), confidential credit protecting reputa- balancing the state interest analysis protecting interest First Amendment against tion that, the reduced light of concluded expression, and “[i]n no matters of speech involving constitutional value concern, supports adequately the state interest we hold that damages absent presumed awards —even ” malice.’ Id. at 105 S.Ct. at showing of ‘actual omitted). (footnote however, from Builders, diverge
The facts Greenmoss assistance direction to be of immediate wrong Gertz in this case. Green punitive damages on the issue of us public configuration suggests that when the moss Builders Gertz, presented in is less than that a defamation case is, plain private plaintiff/private speech private versus *33 applied to the award tiff/public speech, the standard be include actual malice. punitive damages of need not ing apply is standard when question we face what private is a individual. plaintiff public a official rather than is, definition, of public by about a official speech Because concern, discuss the character is no need to public there only Therefore the speech of nature of here.19 ization decisions, Phila defamation In one Court’s recent 19. of 1558, 89 delphia Newspapers, Hepps, 475 U.S. 106 S.Ct. Inc. (1986), recognized L.Ed.2d 783 Justice O’Connor landscape reshape conform may the common-law two forces that plaintiff is a whether the The first is First Amendment. figure. is figure, private The second public or is instead a official the instant case distinction between factual relevant Gertz We conclude plaintiffs. status of public is the the same standard damages, of that, punitive in the context required by Gertz would is a plaintiff where the required official. public contrasting the Gertz Court’s this conclusion reach
We
of
dam-
with its discussion
liability
discussion
Builders.
as did the Court Greenmoss
holding
ages,
liability
against
for defamation
impose
may
that the states
demanding showing than actual
on a less
individuals
private
distinguishing among
malice,
difficulty
had “no
the Court
Gertz,
at
418 U.S. at
S.Ct.
plaintiffs.”
defamation
distinction,
emphasized
the Court
As
of this
part
self-help remedy
access to the
has less
private plaintiff
a
put
has not
himself
rebuttal,
private plaintiff
public
the risk of closer
having
accept
position
a
344-345,
Id.
these
at 3009.
“For
94 S.Ct.
scrutiny.
retain substan-
the States should
reasons we conclude
legal remedy
enforce a
in their efforts to
tial latitude
pri-
of a
reputation
injurious
falsehood
defamatory
Thus, it
Id. 345-346,
at 3010.
94 S.Ct.
individual.”
vate
in providing
interest
legitimate
of the state’s
strength
is the
liability
stan-
the different
remedy which forces
legal
speech
public
When the
speech
is of
concern.
whether the
at issue
public
public
plaintiff
official or
public
and the
is a
is of
concern
plaintiff
clearly requires the
to surmount
figure, the Constitution
recovering damages
higher
from a media
before
much
barrier
speech is
law. When the
is raised
the common
defendant than
Gertz,
private figure,
plaintiff
as in
public concern but the
law, but
supplants
of the common
still
the standards
Constitution
are,
range,
of their
requirements
in at least some
the constitutional
figure
plaintiff
public
and the
forbidding
is a
less
than when the
exclusively
speech is of
speech
When the
is of
concern.
figure,
&
plaintiff
private
as in Dun
private
is a
concern and the
Bradstreet,
necessarily
requirements
force
do not
the constitutional
common-law
any change
of the features of the
in at least some
landscape.
Although
leaves
this characterization
Id. at
551 defamation private plaintiff plaintiff versus public dards actions. however, the court punitive damages,
In its discussion that the by holding public/private distinction any disavowed extends no further “countervailing interest state resultant 349, 94 S.Ct. at id. at injury,” for actual compensation than damages wholly are 3011, noting “punitive that later and negligence justifies state interest irrelevant to the Id. defamation actions.” [liability private for standard in] Thus, court’s concern that at 94 S.Ct. damages unnecessarily punitive award discretion to “jury id., exists self-censorship,” of media danger exacerbates private, plaintiff public equal force whether punitive damages recovery on the any and limitations case. equally either apply would Therefore, more than something to hold that order required public official constitutionally malice is actual damages in a punitive to recover private versus a individual do, us action, as the Post-Gazette would have defamation find it Court would we must conclude First Amendment entirely an new necessary to fashion no We see such question. when faced with the rationale pronouncements. recent See indication the Court’s Builders, also, supra; see id. U.S. Greenmoss (Brennan, J., dissenting, joined by Mar- at 2956 S.Ct. shall, Stevens, JJ.) (as damages, Blackmun, “the need to public figure, is a official or plaintiff when the requirement and the nurture robust issues debate tailored speech narrowly regulation state all prerequisite malice as a require any coalesce to actual fact, added)). when asked to (emphasis recovery.” further protect malice the actual standard modify Lando, 441 U.S. S.Ct. press Herbert v. “in the (1979), refused, noting that
L.Ed.2d 115 the Court Times, since York doctrine announced years New case, represented major development press protective of widely essentially which is as perceived freedoms, appropriate as the has affirmed repeatedly been *35 standard applicable
First Amendment
libel actions
169,
Id. at
brought by public
public figures.”
officials
at 1645. To the extent that the appellant argues
99 S.Ct.
on the
that a
greater protection
grounds
public plaintiff
prove
liability,
must
actual malice to establish
and should be
required
prove
punitive damages,
to
more to recover
we
note that the
Court has never held that the Consti-
tution mandates such an escalation in the standard of proof
See Smith
compensatory
punitive damages.
between
Wade, 461
30, 53-54,
1625, 1639,
v.
103
U.S.
S.Ct.
75
Butts,
v.
(1983);
Publishing
Curtis
Co.
L.Ed.2d 632
388
159,
U.S. at’
Our conclusion
actual malice
constitutionally
official is
sufficient to
con
trigger
jury’s
is
punitive damages
inquiry,
sideration of
not the end of the
however. We must now determine whether Pennsylvania
greater protection
offers
than that which the federal Consti
requires. Again
addressing
tution
we find no cases directly
the issue. Before actual malice was introduced into the
punitive damages,
defamation formula for
of common
proof
Pur
required
punitive damages.
law malice was
to recover
Co.,
v.
167,
Westinghouse Broadcasting
cell
411 Pa.
186-
Gertz,
187,
(1963).
191 A.2d
662
With the decision
Pennsylvania
requirement
added the
of actual malice.
Inc.,
Hepps
Philadelphia
v.
304,
Newspapers,
506 Pa.
485
rev’d on other
(1984),
767,
grounds,
A.2d 374
475 U.S.
106
Walter,
1558,
v.
(1986);
L.Ed.2d 783
Sprague
S.Ct.
89
357
570,
(1986)
granted,
allocatur
Pa.Super.
Thus, Sprague, supra, expressly required the court malice, mentioning actual malice without common law but the court’s disclosed evidence of common law mal- opinion
553 In 610, A.2d at 727. Pa.Super. at Sprague, ice. Wilson, supra at Banas, A.2d at 640 and supra to reach opportunity no the court had A.2d at a damages precluded were issue because Walder, supra, the result malice. actual prove failure to purports court interpret because difficult especially Merriam, Feld malice,” but cites “actual require exclusively on case which relied supra, a non-defamation Walder, Pa.Super. law malice. common (1985). A.2d at 626 however, Pennsylvania may cases, suggest do
Two
malice, even
law
showing of common
require
continue
*36
court
supreme
Our
required.
is
actual malice
when
Wilson, supra,
courts in Banas
supra,
like the
Hepps,
malice because
issue of common law
did not reach the
ground
the
damages issue on
punitive
disposed
330,
Hepps,
506 Pa. at
not established.
actual malice was
of
However,
discussing
sufficiency
This in Marcone conclusion Appeals’ Third Court of Circuit Men, 754 F.2d Magazine v. Penthouse International for 182, denied, 864, 88 106 S.Ct. cert. (3d Cir.), 474 U.S. 1072 case, that defamation (1985), figure L.Ed.2d 15 554 plaintiff prove had to instruction judge’s district
“[t]he
damages] appears
recover
'outrageous conduct’ [to
However,
Pennsylvania
reflection of
law.
an accurate
to be
First
also had to meet the
charge
permissible,
to be
established
requirements
Amendment
omitted).20
(footnote Hepps
1088
Id. at
Court.”
case,
Co.,
Pa.Super.
v. News
361
In the second
Frisk
denied,
(1986)
515 Pa.
530 A.2d
allocatur
per. when the defendant’s damages appropriate only are tive required than that which egregious conduct is more *37 562, A.2d Id., at 506 Pa.Superior 351 Ct. liability. establish notes, However, reluctantly as the at 915. Post-Gazette damages charge punitive must requirement on that the 20. The court’s requiring that the to be understood as "actual malice” is not include already repeated it has been must be if definition of actual malice charge liability. in Marcone had ruled given on The trial court in the figure plaintiff private therefore had not included was a and. liability. charge in its on actual malice discussion, appellant’s the court answered In a footnote to this constitutionally impermissible damages punitive are contention that plurali- figure by quoting from Justice Harlan’s libel actions in Butts, Publishing supra, effect that ty opinion in Curtis Co. damages justifies justify compensatory also sufficient to misconduct 4, Frisk, Pa.Super. A.2d at 353 n. damages. at 549 n. 523 punitive 361 reconciled, however, inconsistency apparent need not be 4. The entirely issue different from the in the footnote was because the issue text. in the
555 recogni- with a this statement opinion footnotes Geyer is where to the rule the case apparent exception that an tion Id., liability. establish required is of actual malice proof n. A.2d 915 n. 10. Pa.Superior at Ct. previ- this Therefore, principal, reliance on appellant’s must requirement, supra, a constitutional rejected as ously in Pennsylvania precedent element of rejected as an also be case. this in argues Geyer that the result appellant nonetheless proposes. Geyer rule it egregious” the “more
mandates
in
case
issue
decided
private plaintiff/private
awas
in
Supreme Court’s decision
States
wake
United
Beck,
alone on
Builders,
Judge
writing
supra.
Greenmoss
for the
of
applied
to be
allowance
proper
standard
that,
of
case,22
spite
reasoned
in
damages
such
punitive
Builders,
require
course was to
proper
Greenmoss
However,
she did not reach
of actual malice.
proof
more
that actual malice was
ground
conclusion
Rather,
conduct,
suggests.
as the Post-Gazette
egregious
damages
punitive
punish
of
purpose
she noted
repetition, Geyer,
conduct and to deter further
past
and,
actual
juxtaposing
A.2d at
Pa.Super.
types
as definitions of two
malice and common law malice
conduct, she
malice
decided
actual
blameworthy
wrongful
intentionally
the kind of
clearly
describes “more
of our concern
subject
which should be
conduct
Id.,
damages
actions.”
imposing punitive
defamation
Pa.Superior Ct. at
Therefore, looking not for we are Geyer, even under setting a sense when quantitative conduct in the egregious punitive damages, appellant’s for the award standard rather, looking are egregious” we argument; “more (then) Judge Spaeth, Geyer panel comprised President 22. The Judges Judge opinion for the Tamilia. wrote Beck and Beck result, Judge Spaeth in the but did panel. President concurred Judge damages, feeling our join Beck’s discussion Hepps supreme opinion court’s the law in the Common- established Judge Tamilia was irrelevant. wealth and that Greenmoss Builders punitive damages, majority opinion except joined the on the issue *38 joined Judge. he President where is, sense, egregious qualitative type conduct the “more Having rejected of conduct to sanctioned. rule, egregious” adopting we find no basis Post-Ga- punishable knowledge zette’s limitation of conduct to actual and actual intent to harm. The “recklessness” falsity the actual malice and common law components both considered sufficient always malice standards have been respective sought indicia of the conduct be sanctioned purposes. the intended serve
However, left question open this does not answer the allowing punitive as to what is to be the standard for Geyer damages plaintiff a defamation action where the is a Judge official. If we Beck’s conclusion that public embrace represents malice of conduct to be sanc- type actual actions, in defamation we must by punitive damages tioned official actual malice to proves hold that who liability automatically ques- establish entitled have and end punitive damages jury, tion of considered But, that, our discussion here. we are constrained to feel circumstances, under these common law malice better de- punished, the conduct to be and therefore we must scribes continue our analysis. earlier, adopted guide- noted has Pennsylvania
As we
908(2)
(Second)
line of
of the Restatement
of Torts
Section
question
punitive damages
general,
on the
and has
malice
developed
requirement
of common law
around
as “out-
variously
conduct which has
been described
“reckless,”
“malicious,” “wanton,”
“willful,”
rageous,”
“op-
motive,”
pressive,” the result of “bad
or “reckless indiffer-
Merriam,
Pa. at
rights
ence to the
of others.” Feld v.
Thus,
395,
557 Law, 847, 98 Harv.L.Rev. 852 and Libel Damages Punitive (1985). malice, hand, exclusively on the other focuses
Actual
the truth of the statement
attitude toward
the defendant’s
made,
“ill will toward the
understood that
being expressly
it
motives,
the actual
are not elements of
plaintiff, or bad
Metromedia, Inc., 403
malice standard.” Rosenbloom
1811,
18,
18,
1824, n.
In Geyer,
as the standard
law malice
actual malice over common
that,
“[although
reasoned
damages,
awarding punitive
involves
clearly
law malice
‘ill
of common
component
will’
to harm the
actual mal-
directly
plaintiff,
conduct
intended
respect to
equally
falsity
ice
is
intentional with
conduct
A.2d at
publication,”
Pa.Super.
Geyer,
915-916,
that,
its essence the law of libel
because “[i]n
done to a citizen’s
may
the harm which
is concerned with
defamatory
the communication of false
reputation by
act,
i.e. the
statements,
wrongful
...
act
...
[t]he
the publication
therefore
plaintiff,
causes the harm
words,
of a malevolent or
holding
libelous
Id., 351
plaintiff.”
Pa.Superior
toward the
spiteful attitude
*40
this,
From
she concluded that
564,
at
The issue with harm, harm. While intentional conduct causes not actual often do with malice dispute publishing we not an distinguish publishing from with may be difficult harm, see, Co. v. intent to Schiavone Construction e.g., 1511, (D.N.J.1986) no Time, (finding 1518 Inc., F.Supp. not at this time to difference), are meaningful prepared we no distinction exists. Because as a matter of law that say that “the decision of whether Pennsylvania settled in is well of the discretion damages ... within punitive to award [is] finder,” at 464 A.2d Pa.Super. Delahanty, the fact it the course to leave determina- at feel better we under instructions. proper tion to the jury “that actual malice stan- Judge argued further Beck policy deterrence goals meets the behind dard better realistically ‘deter’ and laws cannot ... [because c]ourts law hating ... disliking or another someone from [but] he more careful about what encourage person can to be another, his ill including object about says publicly This Pa. 506 A.2d Super, will.” Geyer, conclusion, however, purpose misapprehends deterrent cannot Although it is true one damages. punitive ill harboring feelings from of will be deterred realistically ill another, acting from on that one can be deterred toward precisely the other. This is way as to harm in such will punitive damages. objective deterrent observed, “[cjourts cases should be recently libel As we damages rules general regarding the same guided Roadway recovery.” other tort types Agriss govern 295, 329, A.2d Inc., 334 Pa.Super. Express, Therefore, perceiving denied.23 (1984) appeal allowance of for a requirement the traditional reason to abandon no plaintiff ill will apparent of actual or toward showing punitive damages, we hold that allowing before official, liability malice establish prove who must actual also dam action, may punitive recover in a defamation acted finding an that the defendant additional ages absent state defamatory publishing common law malice ment. whether join do not the debate this conclusion we
With evil,” or malice “more malice or common law actual when damages may only be allowed whether *41 required to egregious conduct is more than that offending rests on holding today tort. Our underlying the establish that, in official simple, important, proposition the but actions, pun- to damages are intended punitive defamation and, ill or will publication apparent deter with actual ish and must be therefore, punitive damages the of award is shown. common law malice limited to those cases where the trial punitive damages, to the issue of entitlement On the as follows: charged jury judge passage, quoted added that "[o]f we 23. In a footnote the above course, recovery of places outer on the the First limits Amendment Pa.Super. damages____” Agriss, 483 A.2d at at 329 n. punitive we intended indicates both that 474 n. 9. This editorial observation comment, scope of and that punitive damages the our include within limitations not to be viewed as exclusive constitutional constraints are damages. on such convincing the If find clear and evidence that you outrageous, you may conduct of Defendant damages compensatory as well as dam- punitive award and punish the Defendant for conduct ages order doing similar Defendant and others from to deter the outrageous when he acts A conduct is person’s acts. when he acts with reckless indiffer- with a bad motive or of others. for the interests ence tracks almost verbatim charge R.R. at 1745a. This (Civil) Jury Standard Instruction Selected Pennsylvania Damages (1984), on the based 14.00—Punitive § seen, 908(1) which, as we have Torts Restatement of § damages.24 on We Pennsylvania punitive is the law in of trial court in its part no error on the therefore find to the Because Post- jury. of this issue presentation of the evidence challenge sufficiency not Gazette does final standard, proceed to the issue may we under appeal. on this presented
B. Excessiveness that, allowing that even finally avers The Post-Gazette damages, of punitive issue jury properly considered those adequately damages limit the trial court failed law prin- mandates and state accordance constitutional failure, it is manifest both argues, ciples. This of a new trial its denial charge jury court’s damages. of a remittitur damages Pennsylvania proof tradi-
24. The standard proof by preponderance the evidence. Martin tionally has been 154, 173, (1985). 494 A.2d Corp., 508 Pa. v. Johns-Manville argue rigorous for more the Post-Gazette would To the extent that observed, standard, product liability in the context the Martin court damage goal limiting punitive best litigation, awards "is focusing conduct instead the nature of the defendant’s served Id., persuasion.” Pa. at n. increasing plaintiff's burden of However, question need decide this we A.2d at 1098 n. *42 they not charged jury could award judge the trial because convincing evi- “by and punitive damages they found clear unless outrageous. The of Post-Gazette was that the conduct dence" appellant complain of cannot now this. Instructions Jury re that the Constitution making argument its limiting of necessity on the to be instructed jury quires First to intrusion on awards avoid punitive amount relies heavi freedoms, again the Post-Gazette Amendment in Court language cautionary on the ly significance of that Gertz, transplanting supra. By limiting availability argument behind language from here, however, the damages argument of punitive currency its constitutional attempting spend to appellant of what the Although much wrong marketplace. in the holding of its damages support punitive said about court limiting discussion on relevant to a might appear in Gertz prof rhetoric cannot be damages, that punitive amounts of standard which is not of a “constitutional” support fered to the result achieved that case. related portion opinion, of the Gertz punitive damages In the the federal inter- the tension between first assessed Court for compensating the state interest speech est in free and interest “ex- noting that the state reputation by injury for actual compensation injury,” than tends no further not include and does Gertz, 418 U.S. at 94 S.Ct. ... far in gratuitous ... awards “securing plaintiffs for this, the was With Court injury.” actual Id. any excess prior liability line its discussion drawing a between state interest al- (compelling respect private plaintiff to a fault) finding on a recovery liability if is based lows point punitive damages. discussion of pending its need liability respect the same used with analysis damages. punitive the issue of applied liability between Having the different treatment justified dam- punitive for damages liability compensatory dam- punitive its concern about explained ages, Court damages to “assess free ages by noting juries, amounts, use their [might] ... wholly unpredictable unpopular expressions selectively punish discretion unnecessarily thereby] ... exacerbate[ ] views [and 350. To avoid self-censorship____” Id. at of media danger *43 562 is, of eventuality, jury to ensure that awards damages infringe do not on free
punitive unconstitutionally should speech, damages only the Court held such prove has been to actual plaintiff where the able available attempt clear evidence. It did not by convincing malice and analysis, onto either engraft explicitly the constitutional on any requirement additional as to limitations implicitly, damages may of be awarded punitive amount has proven. once malice has been The Court itself actual “Our concern was that the threat of observed: Gertz damages, not to especially egregious limited punitive if vigorous of First Amend- cases, might exercise 'inhibit ” 30, Wade, 50, 461 U.S. 103 ment freedoms.’ Smith v. added). 1625, 1637, (1983) (emphasis 75 L.Ed.2d S.Ct. Thus, specific punitive damages amount of any it was not First freedoms. It which threatened Amendment was imposition damages of such which concerned unfettered those Court, protect impos- it interests responded and has protection of constitutional it ing the fullest measure context, proof in this of actual malice. speech ever afforded is a analysis of aided review Court’s Our Gertz Metromedia, Inc., U.S. decision Rosenbloom (1971), years handed down three 29 L.Ed.2d S.Ct. issue in principal Rosenbloom Although earlier. apply to the malice standard should whether actual on plaintiff a matter private defamation dissenting yes), justices said two (plurality concern allowing punitive standard for proper also discussed the that, private plaintiff in a argued Justice Harlan damages. protected case, adequately the constitution defamation “express when damages only are available punitive where shown, has been instructed that jury malice” is and must punitive damages “bear any award amount relationship the actual harm purposeful reasonable (Harlan, J., dissenting). S.Ct. at 1836 done.” Id. Marshall, jury his own concern expressing Justice large damage awards threat- making discretion damages speech, free would have ened “restricted] losses,” punitive damages. allowed actual Id. at (Marshall, J., dissenting). at 1840 91 S.Ct.
Thus,
sought majority position
when the Court
Gertz,
blueprints
it had these
similar issues
two
before
punitive damages
to control the threat of
to consti-
on how
rights. Although
established
the Gertz
tutionally
majority
from
extensively
language
Justice Harlan’s
borrowed
dissents,
Marshall’s
it resolved the issue by
and Justice
*44
plans
choosing
their diametric
and
an intermediate
rejecting
position
This
increased the ante on
for
position.
liability
damages
position,
from Justice Harlan’s
but set no
punitive
amount, and
limits on
lowered the threshold from Justice
position
punitive damages
of no
to make it
Marshall’s
to recover such
in
case.
possible
damages
proper
Therefore,
correctly
when the trial court
instructed the
concerning
requirement
for
of actual
jury
proof
malice
charge
IB,
on liability,
its
see Section
it also
supra,
obligation
its
to the
on the
discharged
ques-
Constitution
availability
punitive damages,
tions of the
see Section III
A,
damages
and on the amount of such
supra,
may
proposed points
awarded. The
for
be
Post-Gazette’s
issue
all
from the
charge
explanatory
were
drawn
Gertz,
language of
and therefore were
refused.25
properly
specific
appellant
25. The
instructions which the
asserts it was error to
deny read as follows:
securing
plaintiffs
The law has: "no substantial interest in
such
gratuitous
money damages
Welch,Inc.,
plaintiffs]
far
as
instant
awards
[the
any
injury.”
U.S.
in excess of
actual
v. Robert
Gertz
2997, 3012,
(1974);
S.Ct.
565 1378, (1982). Thus, the issue of 45, A.2d 1383 35, 451 put not to be punitive damage of a award is excessiveness rather, instruction; it in the of an form jury the court, instance, in the and the for the trial first reserved Therefore, court com- court on the trial review. appellate charge jury any no error when it refused mitted damages might award not be excessive. punitive must punitive damages
As to whether must bear a relationship compensation,26 to the awarded we reasonable See is the law acknowledge Pennsylvania. this Contractors, Inc., Lisbon v. Kirkbride Pa.Super. 357 (1986) (en banc) addressing A.2d 1 (extensively that, question concluding spite prior inconsistent relationship required).27 precedent, a reasonable must be However, alleged considering are from estopped we appellant’s preserve failure to light error 227.1(b). for our consideration under Pa.R.C.P. question brief, challenged reply also that it In its the Post-Gazette asserts damages punitive respect disproportionality of evi- injury. support Reply Appellant Brief for at 22. In dence of actual contention, Lobel, Pa.Super. appellant cites Walder this 211, (the (1985) A.2d "verdict reasonable [must] bear[ ] damages proven”). To to the the extent that the Post-Ga- resemblance disproportion- separate intended this to raise a issue from that of zette awarded, respect compensation it was ality with to the we find waived However, we also reasons are about to discuss. note for the same we language upon context from Walder was in the relied used damages proposition compensatory does not stand for the proof damages disproportionate must not be actual court relied on injury. This is from the fact that the Walder evident (1955), Warley, Pa.Super. which did 116A.2d 342 Mohler v. punitive damages. involve issue, appears be noted that the law settled on this it should 27. While Proposed Pennsylvania Standard Court Committee for believing opposite position, it is Jury has time Instructions taken the existing Pennsyl- may “depart[ from be considered ... what as ] punitive damages.” Pennsylvania Suggested Standard vania law on 14.02, (1984). (Civil) Jury Note at 3 This Instruction Subcommittee § (1979), (Second) § view of Restatement of Torts is also the *46 supreme expressly not ad- c thereto. Our court has and comment instruction, although, jury proposed Martin its Committee’s dressed 154, 173, (1985) Corp., 1098 Pa. 494 A.2d v. Johns-Manville 508 Hutchinson, J., (Per concurring four Justices one Justice result), relationship rule was noted concurring in the reasonable the punitive damages. imposition on the as a restriction in the II, appellant’s proposed Nowhere supra. See Section its for supplemental proposed points for points charge, did charge the charge, supplemental points or its second to the request jury the trial court instruct Post-Gazette must related to punitive damages reasonably be any that Also, after the trial court damages.28 compensatory the you punitive amount assess as charged the that jury “[t]he you to any not bear relation the amount damages need 1746a, damages,” R.R. at compensatory to award as choose not object. did appellant the for, waived,
Therefore, now be deemed as error must the Bank, 358 v. Southeast National we observed Sulecki (1986), appellant’s A.2d 1217 failure Pa.Super. charge given means that at the time the object to “[it] not now instruction ... and ... will the court’s agreed the instructions jury that the followed complain allowed Id,., Pa.Superior at 516 A.2d Ct. of the trial court.” also teaches that where review at 1220. Sulecki waived, charge ap- has relationship” “reasonable been may disproportionality not then assert pellant argument of its compensatory part awards as punitive (“No Id. matter are excessive. punitive damages itself, express can- it language what chooses defendant this issue and we will that it has waived not alter fact it.”) consider not
2. the Award Excessiveness of Thus, argument that we left with the Post-Gazette’s are failing to a new trial grant trial court erred in punitive award was damages damage where remit trial. produced of the evidence light excessive In charge v. Polish Proposed 66 does draw from Laniecki number 413, 423, Association, Pa.Super. A.2d Army Veterans (1984) damages punitive cannot effect “a claim ‘for may any you its not make award stand on damages” own ... “and [plain- damages actual have not been suffered where However, tiffs]____'” request, by the trial this refused R.R. 1814a. court, 227.1(b) requirements in that raises does meet the of Rule addition, substantially from raised here. issue different an awarded, appellant damages were cannot compensatory because give prejudiced court’s failure to claim it was trial now charge.
567
Bank,
found it to
Delahanty
supra,
v. First National
we
“the decision of
be well settled that
whether
award
the amount to
awarded
punitive damages and
be
are within
that, although
the discretion of the factfinder ...
...
[such
law,
they
only
not a favorite of the
...
will
be reduced on
appeal
reviewing
they
if the
court determines that
are
case.”
excessive under the facts of
individual
Delahan-
129,
(citations
at
In the trial court erred deciding whether ground on the grant damages a new trial or to remit excessiveness, peculiarly that that decision “is we observe court, not the discretion of the trial and will within record discloses a clear appeal interfered on unless the Co., 441 Pa. Publishing thereof.” abuse Corabi Curtis (1971). 432, 472-473, exercising 273 A.2d discretion, however, free to “declare an the trial court is not simply might because it have awarded award excessive Sulecki, sitting place jury.” lesser amount Similarly, may A.2d at 1220. we Pa.Super. at of the trial part judge find an of discretion abuse amount. have a different simply because we would awarded (trial court’s Walder, 488 A.2d at Pa.Super. of judgment). of discretion not an error just abuse charged fixing The that in jury trial court damages award, if any, it chooses amount following all consider factors: may any acts, the nature extent character of the Defendant’s Plaintiff caused of the harm to the Defendant cause, the wealth of the Defendant insofar or intended to *48 fixing punish it is an amount which will as relevant in the deter it and others from similar conduct and future____ damages punitive The amount of awarded passion of prejudice against must not be the result The sole part Jury. purpose Defendant on the damages only purpose you and which punitive of punitive make and set an award dam- may an award outrageous is to Defendant’s conduct and ages punish the and others from the commission to deter the Defendant similar acts. (the material concerned the R.R. at 1745a-1746a omitted relationship” portion charge discussed “reasonable Pennsylvania Sug- drawn charge, This from supra). (Civil) (1984), 14.02 ex- Jury Instruction gested Standard § Al- those relevant to the instant action. portions tracts instruction remains our though suggested unadopted 325, court, Kirkbride, Pa.Super. at 516 supreme see 357 3, at included in the trial court’s tailored A.2d the elements our are consistent with caselaw. See charge undisputedly 395, (look A.2d at Merriam, Pa. at 485 748 Feld v. 506 circumstances, including and motive and relations the act all 225, Penman, 357 Pa.Super. Pierce parties); v. between denied, 608, (1986) 237, 948, 515 Pa. 515 A.2d 954 allocatur assessing (1987) A.2d has discretion in (jury 529 1082 broad punitive and damages to effectuate punitive amount Sulecki, 138, A.2d function); Pa.Super. 358 516 deterrent award); (look purpose 1220 of conduct and to nature 336, Genteel, Pa.Super. Inc. 346 Dean Witter Reynolds, denied, (1985) Pa. 499 A.2d allocatur 908(2)of (1987) approval A.2d 346 with Section (quoting Restatement, given); for the charge is the basis Pa.Super. Osteopathic Hospital, v. Memorial Hoffman (defendant’s 375, 385, (1985) wealth 492 A.2d damages). Having correctly punitive to set relevant the trial now look to see whether jury, we charged award of upholding jury his discretion judge abused damages. thorough analy Judge Mihalich’s We conclude in all of the grounds sufficient issue reveals sis of this categories require an affirmance stated above of review stated above. of the standard light award that, determination, before even we are mindful making this issue, already had determined jury considering false, the Post-Gazette and that material published at least a reckless actual malice it with published of Richard DiSalle. rights indifference the nature of the considered opinion, judge In his the trial by observing its motive apparent conduct and newspaper’s disregard particular actions evidenced a the Defendant’s gathering news responsibilities major as for its *49 attempting report dispas- Far source. from conveying pro- into a dispute ripened a which had sionately on of the Post-Ga- legal proceeding, purpose the tracted] family controversy to sensationalize this bitter zette was impropriety by sexual a suggestions lurid of fraud and by It is not reproach. reputation man whose was above was prepared by that the article the Post-Gazette simply inaccuracies; that the editors it was more replete with necessary found it charge preparation of the of the article fill a and sensational element to to insert an unfounded reporting accurately Rather than story. “hole” in the not of consideration to prime this “hole” was even contestants, highlighted the counsel for the Post-Gazette on the impression as to leave the natural way it in such a of Mr. DiSalle’s question reader that a serious part of the in a court integrity and had been entertained competence of law. Opinion at 30-31.
Trial Court
record,
find that these
we
From our own review
evidence, and we
supported by the
amply
conclusions are
attributed
this conduct.
significance
with the
agree
Co., supra,
it was determined that evidence
Frisk v. News
acceptable journalistic prac-
departure
an “extreme
from
of
dam-
punitive
the basis for an award of
may
tices”
form
Frisk,
353. Con-
Pa.Super.
at
A.2d at
ages.
Sulecki,
upheld trial
supra,
this court
court’s
versely,
of punitive damages against
of
award
the
remittitur
an
result of
the
that the defamation was the
grounds
Bank on
employees acting
of one of the Bank’s
hostility
personal
the
own,
scope
employment.
within the
of his
although
his
on
court,
held
reasoning
the trial
we
the
Adopting the
light
isolated conduct of the
proper
the
reduction
Sulecki, 358
CONCLUSION an asks us strike appeal, the Post-Gazette With tradi- long-standing between two balance unprecedented parallel which, history, most of our traveled tions tradition of constitutional courses without conflict. Our overlap seen was not speech free jealously guaranteeing a man’s honor protecting tradition of with the older even defamation from false because reputation comment protection; it was unworthy constitutional considered form of no value and therefore of by definition false exchange free of information. on the government dependant recognized that the essence Court Recently, speech principal is the to free commitment our national must allowed be uninhibited debate sharp robust, unpleasantly vehement and sometimes even *51 and, statements in such a because erroneous are inevitable free setting, they protected give expression must be even Therefore, needs to breathing space it survive. speech definition of false was refined order to better separating protected The line false protect speech. free speech from that false which would remain outside speech pale speaker drawn the constitutional was between who recklessly disregarded speech knew fact false, this “actual misspoke and the one who without new left malice.” The former was to the mercies of state while the latter was shrouded with the defamation law protected First from the cloak of the Amendment and for his damages injurious assessment of misstatement. Actual malice became the Court’s defamation cursor, screen it at the placed point on the before by to be the First sought protected the interests where precedence take over the individual interests Amendment Thus, public officials in state defamation law. embodied recovery themselves from public figures separated find cursor, private do not. plaintiffs in defamation but by static, not of the cursor has been position While virtually follows has remained degree protection of which passed have since unchanged years the score of over of called adoption and the score cases which have many its application. for its relocate, rather than enlarge,
The Post-Gazette seeks disregard or reckless protection by making knowledge liability, issue of and actual of irrelevant to the falsity recovery to the falsity prerequisite knowledge under the circum- will not do punitive damages. This we malice, though Actual not without stances here. presented detractors, purpose according protec- its its has served of or publish knowledge only tion to those who do truth, and therefore whose intentional blindness others, debate. All objectives robust actions serve contribute act the truth and therefore disregard who chances in the to take their nothing, properly are forced they sought ideas which have marketplace same free to us the not recommend of this case do The facts abuse. category the latter risks taken lessen the need to defendants. *52 J.,
MONTGOMERY, dissents.
APPENDIX BATTLE FOR $8 IN FAMILY’S HEATS FEUD INHERITANCE MILLION PORTER, J. JR. By THOMAS Writer Post-Gazette Staff man who Ciaffoni, self-made Washington County Paul estate, 79 in age died at the of in real amassed a fortune his of success that then the sweet wine 1974. But since has sour. enjoyed turned family divided over bitterly has been family
For five years, Allega- of assets. of million worth disposition Ciaffoni’s $8 tions of fraud abound. Concetta, widow, residing now side is the
On one son, Ariz; Canonsburg, Robert of Tucson, his youngest Brentwood, son, of oldest Orlando County; the Washington Township, of Peters Margaret Soviero daughter, the oldest and their children. Washington County, Elizabeth Cowden daughters, are four On the other side of Virginia Messa Washington County; Township, of Cecil Erik- Jersey; Lorrayne Myers of New Philadelphia; Pauline Ala.; and their children. Birmingham, of son that some among them fight has been the So bitter the riches to which accept won’t family members of situation is resolved. are entitled until the they court lengthy subject has been the That resolution a U.S. judge, Court disputes, involving a Commonwealth Richard Philadelphia lawyer and famed judge District Sprague. imagined occur- could never have
It is a situation Ciaffoni advent of belongings at the packed up when he his few ring fortune in seek his Italy native I left his and World War County Washington He settled States. the United busi- and shrewd hard work through years eventually, of considerable property owner dealings, became ness means. together under times, family worked happier husky patriarch.
leadership over the estate harmony ended his death the But at farmlands, hundreds rolling of acres of includes thousands oil, coal, real estate seven cattle, gas of head buildings. supermarket states, of leased and chain co-executor, Robert will and a contestant A chief the family feud Ciaffoni, gut issue charges on fraud: centers acreage. This will a fraud. It is arguing
“We’re *53 in keeping my It is not father’s not father’s will. my in the he said. keeping peace family,” of policy mother, together gain and would most his who Robert will, contestants, primary and have taken from the are the Soviero, nothing. receive the side of Mrs. who would once a matter of honor. We were “I renounce this will as has out the moral and ripped This fraud happy family. Robert declared. my family,” financial heart of of his charges the will was falsified benefit He Cowden, in a sister, request and an Elizabeth youngest courthouse, Washington County he injunction filed in the Court as her and Commonwealth co-conspirators names will in 1968 as an prepared the Judge Richard DiSalle who attorney. Mrs. Cowden injunction request
The asks that powers of of co-ex- rights to “exercise the and permitted co-conspirator because as family ecutor of fortune” against who recrimination those a fraud she could “invite charged her with fraud.” have Keim visiting Earl F. of Westmore- Judge
In February, Washington County, case in County land who heard the upheld will and ruled as inadmissible authenticity experts hired by portions claims contestants that the will were altered. change his decision however, right
Keim, reserved side. for each attorneys filing briefs pending Keim expected filed and now been Those briefs have ruling final soon. make a to take the case to opponents of the will have vowed if lose. they
the state Court 400-acre family’s Mrs. Cowden with provides The will on West largest estate’s food store and the homestead Junction, Avenue, with an estimated Brookline Liberty $6,000. rental monthly value store, or the food not receive the homestead She did Junction, in P in Brookline supermarket was an A & real is their father’s proponents claim a 1965 will that the will. land
However, tracts of she receive several valuable did A P in Sewickley. an & store will,” real my for in father’s provided was well “She great time had a amount said. “At that we Robert baby for Elizabeth. She respect love family.” have the
“But, intention to always my it was father’s in to remain in the Ciaffo- and lands close family homestead area after He his name live on ni name. wanted he way was.” his death. That’s homestead, 1930s in the family purchased said the Robert family.” *54 moral of the Ciaffoni the “roots and substance was sum- stay to in the grandchildren came “It’s where We worked mer, gatherings. other family Christmas and it, plowed made and We land with our hearts hands. that cattle,” he said. it, head of and raised thousands of hay family goit out father would never have let “My married.” someone Elizabeth report, inspector’s Postal
Robert cites a U.S. Service last hearing year, an entered evidence at earlier inconsistent” page “appeared second will’s controversial the other pages. Washington of the will was ordered examination The from Simmon, himself dismissed Judge Paul who County judgeship, to a District Court U.S. case when nominated superficial review of “survey limited to but aspects.” physical case appointed state Court then Keim to the September. last
and a trial was held Aker, attorney filed Brook by J. subsequent In a brief family, claimed side of the he the widow’s representing hired testimony experts permitting court erred fraud. is a opponents proving will by the assigning Elizabeth portion said the will Robert Pittsburgh referred as property was Brookline Junction will, he as prepared if DiSalle charges 19 and 19 is Pittsburgh did, he he would have known testified County.” Uptown legal Allegheny hub of in the —“the Richard security that for reasons charges further Robert with a begin inside a will or end page never let an DiSalle pages questioned Yet two paragraph. sentence did. will interview, point during recent questioned on
When DiSalle, election bid spring primary lost a who this renomination, said: appeal.” under The case is
“I can’t comment. leaving after the page before and pages Robert also said new permit where doctored legacy Elizabeth her entry. meet sort of if some trying as were
“It’s someone in,” said. else Robert get something internal deadline to the will DiSalle prepared He said DiSalle that when close friends. Elizabeth were deposition prepared by Richard Sprague, attorney
for proponents will, and entered in the court record *55 relation- Robert about questioned case, Sprague of the Elizabeth. his sister DiSalle between ship deposition: in the Robert asked Sprague other you by to told has been me what you tell “Now intimacy of sexual indication is an you people Elizabeth Cowden?” DiSalle Richard between replied. Robert were they I said misstating position. my your
“I’m sorry, were ob- of time and periods for extended themselves by into that. develop it could and that people other served telling you.” all I am That’s contacted, declined to comment Mrs. Cowden
When her attor- case, questions all referring aspect any Robert Ceisler. ney, said, time to appropriate “I think this is the don’t
Ceisler filed both sides and this case. Briefs have been discuss from Keim.” awaiting Judge are the decision we he deposition by Sprague, questioned taken In another widow, Concetta, she with her about conversation had his which she asked her shortly husband before death getting family if he knew that husband Elizabeth property. homestead and Brookline Junction his wife According deposition, reply Ciaffoni’s was:
“No, I did her now.” sign. right sir. Call he then at me. I he was thought She said “screamed going to take a heart attack. said, better,’ ‘No, quieted
“I and he you you get wait till had. and that was the conversation we down specifically I felt that he did not “That’s when wanted —I know, hear good.” cause he couldn’t see or daughter, questioned nothing will leaves to the older Margaret Soviero. children, age widow, college Soviero, with three
Mrs. College Community Reading Academy director County working de- Allegheny and is on her doctorate *56 gree. acres in approximately
In the 1965 will she received Airport. Pittsburgh near Greater Fayette Township North sister, sons of goes younger now to two property That Messa. Virginia feelings that bad between her admitted there were
She Virginia. and that sided with Virginia and Elizabeth having large family oldest in a and to “Being the sister sisters in the absence of punishment younger to dispense I relished my job and father at times wasn’t a mother did,” they Mrs. Soviero said. “But worse anymore than over doing hitting I Elizabeth thing ever remembered spaghetti fork. the head with not father’s will. He would have my
“This cannot be thing It an unnatural for this to me. would have been done him to do.” her attor- has instructed claims Elizabeth been
Robert ney speak to her mother. not hurt,” very mother is said.
“My Robert family estranged. two remain sides Meanwhile.the “But Robert said. speak everyone,” “I can’t I longer same. no Personally, will never be the family side. speak anything or have to do with other through Lorrayne make sister peace my “I tried to once after 4-hour she told phone conversation Alabama will, it.’ We me, Daddy’s you prove ‘I know it’s but from each nothing to hide open family were once an thing.” on this energies have been wasted other ... Our MONTGOMERY, dissenting: Judge, dissent, of excessive- solely upon the issue respectfully I damage million award which was punitive of the $2 ness award, in my in this case. This upheld by Majority view, conscience, and should not be affirmed. shocks judge, a trial reduced may be damage awards
Punitive court deter- reviewing if the appeal on reduced be may individ- facts of the under the excessive are they mines Bank, Pennsylvania v. First Delehanty See ual case. However, I (1983). 90, 464 A.2d N.A., Pa.Super. such as circumstances trial in a new grant prefer would I convinced am case because in this presented those compensatory issues unless offended process due ain bifur- to the jury presented are damages the issue deliberate first should jury manner. cated are to be awarded damages, any, if compensatory what been rendered has the verdict after Only plaintiff. consider permitted jury should issue *57 damages. punitive question
Justice O’Connor has articulated well several concerns I
process
punitive
share
a denial of due
in a
regarding
damage procedure such as that followed in the courts
our
Commonwealth, in which there are no real limits or struc-
Concurring Opinion
ture.
Justice
See
O’Connor’srecent
issue, in
this
Casualty Company
Bankers
and
v.
Life
—
Crenshaw,
—,
1645,
I
believe
presenta-
affected
clearly
awarded in
case were
Defendant, in connec-
of the wealth
tion of evidence
damage
consideration
jury’s
tion with
Merriam,
see Feld v.
point,
On this
the same time.
issue at
Thus,
a retrial
(1984).
485 A.2d
506 Pa.
could
This result
is warranted.
damage issue
compensatory
such as
procedure,
bifurcation
avoided
have been
I urge
adoption
of such
jurisdictions.
followed
other
practice
our Commonwealth.
Argued Oct. 1987.
Filed June 1988. Reargument Aug. Denied