On November 10, 1974, the Philadelphia Inquirer рrinted an article headlined “D.A. Gets Ex-Client Off Light.” The article reported that appellant F. Emmett Fitzpatrick, then Philadelphia District Attorney, had recommended that Joseph Nardello, who was being sentenced for his fifth felony, be placed on probation. According to the article, U.S. Supreme Court records showed that “in 1968, while a defense attorney, Fitzpatrick represented Nardello and a codefendant in a criminal case.” Appellant subsequently instituted the present action for defamation against appellees Philadelphia Newspapers, Inc., the publisher of the Inquirer, and Inquirer reporter Anthony Lame, the writer of the allegedly defamatory article.
Two assertions lie at the heart of appellant’s claim. First, apрellant contends that he did not recommend probation for Nardello, but instead informed the sentencing judge *441 that his office would have no objection to a sentence of probation and, in a phrase omitted from the Inquirer article, that “[w]e leave the matter entirely to your Honor.” Second, appellant asserts that while he had once presented to the U.S. Supreme Cоurt a legal argument that was applicable to the case of Joseph Nardello, a client of A. Charles Peruto, as well as to the case of his own client, Isadore Weisberg, he did so because the rules of the Supreme Court allowed only one lawyer to argue on behalf of the two similarly situated clients. Nardello was never his “client,” appellant assеrts, nor did he ever “represent” Nardello.
At the close of the trial of appellant’s libel action, the jurors were supplied with a verdict sheet which asked 1) whether the November 10, 1974 article was defamatory of appellant; 2) if so, whether the article was false; 3) if the article was both defamatory and false, whether appellees published it with either actual knowledge that it was false or with subjective awareness of its probable falsity (i.e., with malice); 4) if they did, whether appellant sustained actual injury as a result of the publication of the article; and 5) if he did, what amounts of compensatory and punitive damages should be assessed. The jury answered no to the first question, thus finding in favor of appellees without having to consider the rеmaining questions. Post-trial motions were filed and denied, judgment has been entered on the verdict, and appellant’s appeal is now before us. We affirm the judgment in favor of appellees.
Of the ten issues raised by appellant in this appeal, nine allege error on the part of the trial court. Appellant contends that the trial court erred in: 1) allowing testimony thаt appellant had taken the Fifth Amendment in a prior, unrelated proceeding; 2) refusing to instruct the jury that, as a matter of law, there was no attorney-client relationship between appellant and Nardello; 3) refusing to instruct the jury that the challenged article was, as a matter of law, defamatory; 4) instructing the jury that the defamatory nature of the challenged articlе must be proved by clear and *442 convincing evidence; 5) instructing the jury that they were to give words “their ordinary meaning” and “not pick out and isolate particular words or phrases,” thus allowing the jury to reach an incorrect conclusion regarding the existence of an “attorney-client” relationship; 6) failing to answer questions submitted by the jurors in a manner that would alleviate their evident confusion; 7) refusing to grant a new trial on the ground that defense counsel, during closing argument, compared appellant to a mentally deranged movie character; 8) refusing to instruct the jury that an adverse inference could be drawn from the failure of appellee Anthony Lame, the writer of the challenged article, to appear as a witness; and 9) rеfusing to grant a mistrial after Carl Lunkenheimer, a former assistant district attorney, made highly prejudicial remarks concerning appellant and his counsel.
Although we have reviewed appellant’s claims of trial court error and have concluded that one or more of the claims may well have merit, it is appellant’s remaining claim which proves to be dispositive of this appeal. Appellant contends that, in addition to having established the falsity of the challenged article, he has also met the burden, imposed on defamation plaintiffs who are public officials by the U.S. Supreme Court’s decision in
New York Times Company v. Sullivan,
*443
Preliminarily, we note that our conclusion that the actual malice issue is controlling rests on several considerations. It is, of course, settled law that we may affirm the decision of the trial court if it is correct on any ground.
E.J. McAleer & Co., Inc. v. Iceland Products, Inc.,
In additiоn, the parties have raised the actual malice issue in this appeal. Appellees urge us to affirm the judgment entered in their favor on the basis of what they contend is appellant’s failure to prove actual malice. Appellant, as noted above, asserts that he has met his burden of proving the existence of actual malice with clear and cоnvincing clarity.
There is, finally, an even more fundamental basis for our conclusion that actual malice is the controlling question in this case. The sufficiency of the evidence to support a jury’s finding of actual malice is a question of law,
Harte-Hanks Communications, Inc. v. Connaughton,
—- U.S. -,-,
“Judges, as expositors of the Constitution,” have a duty to “independently decide whether the evidence in the record is sufficient to cross the constitutional threshold that bars the entry of any judgment that is not supported by clear and convincing proof of ‘actual malice.’ ”
Id.
(quoting
Bose Corporation v. Consumers Union,
The same “considerations of effective judicial administratiоn” which led to these decisions suggest that granting a new trial in the present case on the basis of trial court error might well prove to be an unnecessary and futile gesture if we do not first determine that the evidence offered by appellant would, on remand, be constitutionally sufficient to sustain a finding of actual malice. Accordingly, we will examine the record to determinе whether, as appellant asserts, there exists clear and convincing evidence of actual malice. In addition, in order to determine whether evidence of actual malice may have been improperly excluded, we will consider appellant’s claim that the court erred in refusing to instruct the jury that an adverse inference could be drawn from aрpellee Anthony Lame’s failure to testify. 2 Appellant avers that Lame is “a party to this action having knowledge bearing on the questions of falsity and actual malice” (Amended Brief for Appellant at 42).
It is indeed settled law that a party’s failure to testify at a civil trial raises an inference of fact that the party’s testimony would have been adverse or unfavorable to him.
Beers v. Muth,
In determining whether appellees acted with actual malice, the standard to be applied is not objective (i.e.,
*447
whether a reasonably prudent person would have published the challenged article), but subjective.
St. Amant v. Thompson,
[a]ctual malice ... requires at a minimum that the statements were made with a reckless disregard for the truth. And although the concept of “reckless disregard” “cannot be fully encompassed in one infallible definition,” St. Amant v. Thompson,390 U.S. 727 , 730 [88 S.Ct. 1323 , 1325,20 L.Ed.2d 262 ] (1968), we have made clear that the defendant must have made the false publication with a “high degree of awareness of ... probable falsity,” Garrison v. Louisiana,379 U.S. 64 , 74 [85 S.Ct. 209 , 216,13 L.Ed.2d 125 ] (1964), or must have “entertained serious doubts as to the truth of his publication,” St. Amant, supra [390 U.S.] at 731 [88 S.Ct. at 1325 ].
— U.S. at-,
Our review of the record reveals that appellant has failed to provide clear and convincing evidence of actual malice. Appellant, relying on the 1976 decision of the Disciplinary Board of Pеnnsylvania which found that there had been no attorney-client relationship between himself and Nardello, contends that the absence of such a relationship was a fact which could have been learned by appellees prior to the writing of the challenged article if they had made a “true effort to ascertain the formal legal status of Mr. Fitzpatrick’s invоlvement in the United States Supreme Court” and had not drawn unsupported legal conclusions with “abandon” (Amended Brief for Appellant at 27). Whether additional investigation could have uncovered such a “fact” is highly debatable. At trial, Stephen Gillers, called by the defense as an expert witness in the area of *448 professional responsibility and procedure, testified that in his оpinion appellant represented Nardello for purposes of the Supreme Court argument and Nardello was, at the time of the argument, appellant’s client (N.T., June 7, 1988, at 36-37). If appellees, prior to publication of the article and without the benefit of a ruling by the Disciplinary Board, had sought expert advice in this matter, it is entirely possible that they would have rеceived an opinion identical to that offered by Mr. Gillers at trial. For that reason, we decline to accept appellant’s characterization of the status of appellant’s relationship with Nardello as a “fact” which could have been discovered by appellees if they had been sufficiently diligent.
More importantly, however, we focus upon the investigatory efforts actually undertaken by appellees, not upon the additional efforts that might hypothetically have been undertaken.
See Curran v. Philadelphia Newspapers,
Nor do we agree with appellant that the following statement of Anthony Lame, made in 1981 in response to a request for admission, establishes serious doubt on the part of appellees:
Defendant, after reasonable investigation, is without knowledge or information sufficient to form a belief as to the nature of or existence of the attorney-client relationship between F. Emmett Fitzpatrick, Jr. and Joseph Francis Nardello prior to November 10, 1974.
We do not read Lame’s answer as an admission that in 1974 he entertained serious doubts as to the truthfulness of the statements made in the challenged article, but as a reluctance in 1981 to offer an opinion on what had becomе, following the Disciplinary Board’s findings and the claims raised by appellant in the present action, a highly technical question of law.
Appellant also argues that appellees’ refusal to print a retraction of the allegedly false assertions constitutes some evidence of actual malice. We note, however, that the Inquirer eventually published a front-рage article headlined “DA Fully Cleared of Ethics Charges” (N.T., May 31, 1988, at 250). Moreover, while appellant testified that the Inquirer never printed a retraction, he never testified that he had actually asked the newspaper to do so.
Assuming for the sake of argument that the challenged article is both defamatory and false, we conclude that appellant has nevertheless failed to provide clear and convincing evidence that appellees knew of its falsity or published it with reckless disregard of its truth or falsity. For that reason, we affirm the judgment entered in favor of appellees and against appellant.
Judgment affirmed.
Notes
. After discussing the meaning of the term "actual malice,” the trial court concluded that the jury made one or more of several determinations, all of which would indicate an absence of actual malice. In fact, as noted above, the jury did not reach the question of actual malice, as they found that the article in suit was not defamatory.
. Our review reveals that none of the appellant’s other allegations of trial court error bears on the question of actual maliсe.
. Appellees argue that the resolution of the adverse inference issue is controlled by this Court’s decision in
Sprague
v.
Walter,
On aрpeal, however, the Supreme Court held that "the issue of whether Walter was medically incapable of being a witness for PNI [the defendant] was one that the trial court itself should have determined, not the jury____ In sum, we agree with the Superior Court’s conclusion that the trial judge ... erred in ruling that it was a jury question.”