Norton v. Glenn
797 A.2d 294
Pa. Super. Ct.
2002
Check Treatment

*2 Local, is owned Daily ee of the which JOYCE, Before OLSZEWSKI and publish- defendant William Caufield *, MONTEMURO JJ. Troy Publishing. ed defendant suit for def- subsequently Plaintiffs filed JOYCE, J. light pri- amation and false invasion of vacy. ¶ 1 James B. Norton III and Alan M. trial, (Appellants) appeal judg-

Wolfe from to all defendants filed mo- Prior summary judgment. By ment order jury entered on a verdict favor of tions for Troy August the Honorable Publishing Company, Kennedy, Tom dated granted Paula Francisco defendant (Appellees).2 and William Caufield For Ott below, summary judgment fully more forth motion for reasons set we Glenn’s Marlowe, and denied the judgment, vacate the reverse the order as to plaintiffs tri- motion to Norton and Wolfe. denying Appellant’s motions a new al, also denied the motion for Judge and remand the matter for a new trial. Ott a verdict defen-

2. The returned Glenn, “Appel- Sr. term dant William T. lees,” only opinion refers to as used in this Publishing Company, Kennedy, and Troy Tom William Caufield.

* assigned Court. Retired Justice paramount 5 The

summary judgment by Troy filed Pub- matter, lishing Kennedy and and the thrust Company, importance Caufíeld, but ordered that the on whether Appehants’ appeal, William focuses in- at the trial of this matter “be should the Commonwealth report privilege.”[3] on the fair structed adopt *3 applied by the trial court.4 As with 27, was began jury a on March

Trial before law, scope of any question of this Court’s jury 2000. March re- On id. this issue plenary. review is See With in turned a verdict favor of Nor- mind, discussion. begin in we will our ton and defendant Glenn and $10,000 compensatory awarded ¶ reportage privilege 6 the neutral While $7,500 re- punitive damages. by the trial court has apphed that was plain- turned the identical verdict as to ramifications, it is not found Constitutional Troy Publishing tiff Defendants Wolfe. anywhere the United States Constitu Company, Kennedy and William thereto. The any tion or amendments defendants) (the media Caufield Pennsyl in the appear plaintiffs. found not to liable any Pennsylvania vania Constitution or 01/19/2001, Opinion, Trial at 1-3 Instead, repor statutory law. (footnote added). recognized in Ed tage privilege was first ¶ timely Appehants post-trial 3 filed mo- Society, v. National Audubon 556 wards requesting Appel- tions a new trial as to (2nd Cir.1977). 113, 120 Edwards, F.2d Appellants’ lees. The trial court denied Appeals United States Court Appehant, Norton filed post-trial motions. stated: Second Circuit praecipe judgment a to enter on the ver- responsible, prominent organiza- a when dict, judgment was entered and said Feb- Society tion like the National Audubon 12, ruary Appehant 2001. Wolfe filed a charges against makes serious verdict, on the praecipe judgment to enter figure, protects the First Amendment judgment February and said was entered reporting the accurate and disinterested 5, Appellants timely appealed. 2001. regardless of the re- charges, of those

¶ private regarding 4 views their applied porter’s The standard of review Time, 401 validity. Pape, of a See Inc. v. evaluating grant when or refusal 279, 633, 91 28 L.Ed.2d 45 may new trial is settled. We reverse the U.S. S.Ct. (1971); Time, Inc., F.2d v. 439 decision of the trial court it abused its Medina (1st Cir.1971). committed an error of law 1129 What is newswor- discretion or they is that thy of the case. about such accusations that controhed the outcome (Pa.Su do not believe that the Go-pal, 787 A.2d 975 were made. We Haddad may required under the First press per.2001). Ott, 2, parties argue August that the neutral Judge We in her None note that currently recognized is denying Appellees’ opinion motion for only Pennsylvania Su Pennsylvania. The Report summary judgment, "Fair found the that dis preme Court or Court case Reportage Privilege” and the Privi- "Neutral v. P.G. Publish cusses the is DiSalle Opinion, lege” to be same. Trial Court Co., ing 544 A.2d Therefore, trial, n. 1. 08/02/1999 (1988), appeal 521 Pa. allowance of was instructed that the neutral (1989), cert. denied 492 privilege applied, was excluded and evidence S.Ct. U.S. reportage. based on neutral law but and the discussion is not obiter dictum. ¶ Time, suppress newsworthy Pape Amendment to did not carve out privilege allowing “prominent” organiza- merely statements because it has serious rights, tions it did not alter the expanded regarding doubts their truth. Nor must depending defamation on who is law of press up cudgels against take dubi- speaking, espouse and it did not a rule that charges ous in order publish them disregarded private views of the re- without fear of liability for defamation. porter regarding validity of what is Edwards, supra at 120. reported. Inc., Dickey 583 F.2d 1221 v. CBS ¶ Simply put, we find that Edwards (3rd Cir.1978), binding, per- while not misconstrues Inc. v. Pape, supra.5 respect with to the fact that Ed- suasive Time, Inc. Pape a suit for libel was *4 overly expansive interpreta- wards was an based on Time Magazine’s republication of Time, Pape. Dickey tion of Inc. v. v. part of the 1961 United States Commission Inc., Ap- CBS the United States Court of (the Rights Report Report). Civil The peals squarely reject- Third Circuit Report republished allegations made reportage privilege ed the neutral and the Mr. James Monroe where he claimed he expansive interpretation that the Edwards was Chicago brutalized the hands of the Time, imputed Pape. court Inc. v. Dick- Department Police a civil complaint filed 1225, Time, ey, supra at in federal court. Frank Pape, Deputy the Pape long-standing did not alter the rule Chief of Detectives of Chicago the Police Sullivan, enunciated in New York Times v. Department, sued Magazine Time since supra. the republication say did not that the alle history Despite 10 the of the neutral gations from complaint, a civil and it jurisdictions are reportage privilege, there appearance created the that Mr. Monroe’s form apply privilege. some allegations were findings by factual the jurisdictions Eighth These include: the United States Rights. Commission on Civil (8th Circuit, Viking Penguin, Price v. Inc. issue decided the United States Cir.1989) 1426, denied, 881 F.2d cert. 493 Supreme Court was whether Time’s omis 1036, 757, U.S. 110 S.Ct. sion of the word “alleged” showed actual (1990); the United States District Court Supreme malice. The Court determined York, for the Southern District New that Time’s failure did not rise to the level Dimas, 511, 965 520 F.Supp. Coliniatis v. of actual malice. This case did not alter (S.D.N.Y.1997); and the United States rule announced New York Times v. Northern District of District Court for the Sullivan, 254, 710, 376 California, U.S. Barry F.Supp. (1964).6 (N.D.Cal.1984).7 1110, 1127 L.Ed.2d 686 pointed It should be out that no court is it was false or Times whether not." New York Sullivan, 280, 710, supra, bound neutral S.Ct. Edwards, privilege enunciated in because the L.Ed.2d 686. itself was obiter dictum. See DiSalle v. P.G. case, unreported 7. Appellees cite an Ohio J.V. Co., Publishing 544 A.2d at 1354-1355. (Mar. Knight Peters & Co. v. Ridder Co. 1984), App. guarantees require, 6. "The constitutional No. 1984 WL we Summit think, prohibits jurisdictions a federal rule that to illustrate that other recovering damages adopted privilege. official from for a defam- have While some in atoiy relating appellate may rec falsehood to his official conduct courts in Ohio termediate privilege, proves ognize he that the was we found that the Ohio unless statement made is, knowledge explicitly recognize Supreme has declined to with ‘actual malice'—that with Young disregard reportage privilege. v. The that it was false or with reckless ¶ However, above, separately, as we stated returned for retrial. I write however, appear analytical this the Unit to note the framework Constitution, Pennsylvania ed States proving report privi abuse of the fair Constitution, or in any Pennsylvania lege, statu which is and has remained unargu tory law. Our research ably has uncovered no viable for some time. See Sciandra v. Pennsylvania (1963); case adopting Lynett, the neutral re 409 Pa. 187 A.2d 586 above, portage privilege. As Printing stated Di v. Latrobe and Publish al., (Pa.Su only reported Salle is the Pennsylvania ing Company et 762 A.2d 758 (Pa. denied, case that per.2000), appeal mentions neutral but 786 A.2d 988 DiSalle, only as dicta. supra. See Fur 2001). thermore, none any of the decisions in ¶ 2 Majority accurately As the points jurisdictions adopted that have out, regarded privi the trial court the two binding on this Court. leges as synonymous, their differences as Therefore, question the ultimate is wheth Indeed, semantic rather than substantive. er or not adopts the neutral following the dicta of DiSalle v. P.G. Pub reportage privilege? We answer Co., lishing negative. appeal 521 Pa. *5 We find the neutral privi (1989), A.2d 724 cert. 492 U.S. lege was borne out aof misconstruction of 906, Pape, per and we are not (1989), trial regarded the court adopt suaded to this privilege the Com report privilege as an fair extension monwealth of Pennsylvania. Since the tri report privilege applied when to a particu al court found that privilege applied, observes, lar Majority set of facts. As the evidentiary rulings premise, based on this thus, erroneously, trial court “found such, and instructed the it commit that applied, [the neutral] based

ted an error of law that controlled the evidentiary rulings premise, on this outcome of the case.8 (Majority instructed the as such.”

¶ 13 Judgment denying 298). vacated. Order Op. at Appellant’s motion for a new trial re- ¶ In DeMary, supra, panel an banc en versed. Case remanded for a new trial recently of this Court reiterated the defini opinion. consistent with this Jurisdiction report privilege, tion of the fair which in relinquished. Pennsylvania “protects the from lia press bility publication defamatory for the ¶ J., MONTEMURO, files published reports material if the material Concurring Opinion. an official action proceeding.” or Id. at BY CONCURRING OPINION privilege may 762. The be forfeited a MONTEMURO, J.: publisher exaggerates who or embellishes id., occasion, 1 join Majority’s I that account of the conclusions its which must “fair, report privilege complete.” no neutral exists as such accurate and be Scian dra, supra this case must be 589. Publication of defama- Journal, case, Morning apply [Appellants] 76 Ohio St.3d to this (1996). N.E.2d would be due entitled to a new trial to [the trial exclusion of their evidence of court's] opin- 8. The trial court admits as much in its Opinion, actual Trial Court malice.” "[hjowever, appellate ion: an court should 01/19/2001, at 8-9. determine that the neutral actions, the court’s solely then becomes whether tory purpose material according pertaining to the law causing person analyzed harm to the defamed re- are still report privilege. report privilege, sults in loss of the fair to the fair court’s DeMary, supra privi- way, at 762. Put if the trial Whether error. another leged comply occasion occurred is a matter for the with the rulings and instructions report privilege, defendant to establish and for the trial the fair requirements of decide, (theoretical) Tribune-Review its deci- court to Oweida v. correctness of Publishing Company, having the court’s compromised by sions referred, controlling but whether to the erroneously, abuse of the has occurred is a report privilege? as the neutral principle jury. DeMary, supra question I must answered believe this affirmative, since, trial despite privileges as inter- court’s view of the two held, albeit in I they Accordingly, not. changeable, objections, preliminary the context of Majority that the decision agree with proof the burden of borne reversed, and this case retried. must be figure making in order to succeed in out a (a) defamation case media defen

dant(s) requires types two of malice to be “First,

demonstrated. in order to make a

prima facie case the must show

that the newspaper acted with actual mal

ice toward the truthfulness of the state

ment.” Id. at 765. The actual malice

referred is that which was defined In re ADOPTION OF S.A.J. *6 the Supreme Court of the United States in Sullivan, New York Times v. 376 U.S. Appeal B.S.D., T.L.D. and of: L.Ed.2d 686 Appellants. knowledge falsity defamatory of the Pennsylvania. Court of or disregard

statements reckless for their falsity. truth or DeMary, supra at 764. Argued Dec. 2001. “Second, to defeat the fair report privilege Filed March raised, it properly plain once has been tiff must May show defendant was Reargument Denied by ill plaintiff,” motivated will toward the is,

id. at common law malice. explains,

As the “Actual

malice focuses on the defendant’s attitude truth,

toward whereas common law

malice focuses on the defendant’s attitude plaintiff.” Id. at 764.

towards

¶ Here, major problem one of although report

nomenclature: exist, report not the fair

privilege does

privilege does. The trial court conflated ruling evidentiary questions

the two instructing jury.

and in