J-A03022-13
2017 PA Super 127
RANDALL A. CASTELLANI AND JOSEPH J. IN THE SUPERIOR COURT OF
CORCORAN, PENNSYLVANIA
v.
THE SCRANTON TIMES, L.P. AND
JENNIFER HENN
Appellants No. 1145 MDA 2012
Appeal from the Order Entered March 23, 2012
In the Court of Common Pleas of Lackawanna County
Civil Division at No(s): 2005-CV-69
BEFORE: BOWES, GANTMAN, AND OLSON JJ.
OPINION BY BOWES, J.: FILED APRIL 26, 2017
This case is on remand from our Supreme Court.1 In the prior panel
decision, we set forth the procedural and factual history of this matter. 2 In
order to avoid duplication of judicial resources while maintaining a cogent
narrative, we repeat the salient facts.
The present appeal by permission is from two interlocutory pretrial
orders entered in this consolidated defamation action. On January 7, 2005,
____________________________________________
1
The case was remanded on March 3, 2016. Castellani v. Scranton
Times, L.P., 133 A.3d 5 (Pa. 2016).
2
See Castellani v. Scranton Times, 105 A.3d 29 (Pa.Super. 2014)
(unpublished memorandum).
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Randall A. Castellani and Joseph J. Corcoran (collectively the
“Commissioners”) filed this defamation lawsuit against Appellants, The
Scranton Times, L.P. and one of its reporters, Jennifer Henn (collectively the
“Scranton Times”). The action was based upon the January 12, 2004
publication by the Scranton Times of an article in both the Scranton Times
and the Times-Tribune newspapers. The subject of the story involved an
investigation by the Office of the Attorney General of Pennsylvania
(“Attorney General”) into corruption that purportedly had occurred at the
Lackawanna County Prison. In 2003, the Attorney General convened a
statewide investigating grand jury in connection with its probe. At that time,
Mr. Castellani and Mr. Corcoran were Lackawanna County Commissioners as
well as members of the Lackawanna County Prison Board, and, by virtue of
those offices, had oversight of the Lackawanna County Prison. They were
called to testify before the grand jury, and the article reported on their
testimony before that body.
The January 12, 2004 newspaper story consisted of eighteen
paragraphs, and paragraphs two, three, and four of the article were the
basis for the Commissioners’ present defamation suit, commenced at docket
number 2005-CV-69. The paragraphs, in numerical order as they appeared,
outlined that: 1) the Commissioners testified before the statewide grand
jury; 2) a source that was close to the investigation informed the Scranton
Times that the Commissioners were considerably less than cooperative with
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the jurors and often responded to questions with vague and evasive
statements; for example, the Commissioners could not recall or were
unaware of the answer; 3) the jurors became irritated with the
Commissioners since they were accustomed to hearing detailed information
during the proceedings; 4) the jurors wanted to send the Commissioners
from the courtroom; 5) when first questioned about his grand jury
appearance, Mr. Castellani, while in the presence of his attorney, denied that
he testified before the grand jury; 6) Mr. Castellani told the newspaper that
the reporter had “the wrong guy;” 7) after the newspaper confirmed that Mr.
Castellani had appeared before the grand jury, Mr. Castellani was questioned
again and, in the presence of the lawyer, refused to comment on anything
about the grand jury investigation, including his previous statement that he
had not appeared before that body; 8) even though grand jury proceedings
are closed to the public and prosecutors cannot discuss grand jury
proceedings, witnesses are free to speak about their testimony; 9) Mr.
Castellani was reminded that he was permitted to discuss his testimony, but
he still refused to talk; 10) Mr. Corcoran could not be reached for comment;
11) the Attorney General was investigating the county prison due to the fact
that it received information about alleged corruption there in a drug
trafficking case, but the grand jury investigation had expanded into a probe
of allegations as to improper use of inmate labor, sex for drugs schemes,
financial mismanagement, and improper political activity; 12) as the
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majority commissioners for Lackawanna County, the Commissioners were
largely responsible for running the prison, and the county’s prison board
acted only in an advisory capacity; 13) the prison board included the three
county commissioners, the district attorney, the sheriff, the county
controller, and president judge; 14) the grand jury recently subpoenaed
additional witnesses and more prison financial records, and county officials
were told to send a list of all vehicles owned or operated by the prison since
1995, as well as repair and maintenance records for those vehicles, including
invoices for purchased parts; 15) the Times-Tribune was conducting its own
investigation into prison operations and found that the prison administration
was running an automobile body shop at the jail and that the administration
had used inmate labor to work on vehicles, including those owned privately
by prison guards and prison staff; 16) an interim warden was interviewed
and stated that he had timely complied with the latest grand jury subpoena;
17) a previous grand jury subpoena secured information about the prison’s
canteen fund and the inmates’ individual accounts from 1998; and 18) the
Times-Tribune’s investigation revealed that inmates, including felons
convicted of charges such as embezzlement and fraud, were helping to
administer the canteen and prison inmate accounts.
The January 12, 2004 article immediately generated litigation before
the statewide investigating grand jury. Judge Isaac S. Garb was the
supervising judge of that body at the time. The Commissioners asked Judge
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Garb to sanction the newspaper because it violated the secrecy laws
governing grand jury proceedings. That request was denied based upon the
reasoning that the Commissioners lacked standing. The Commissioners then
demanded that the Attorney General be sanctioned for revealing details of
the Commissioners’ appearance before the grand jury.
After this second request was directed to him, Judge Garb appointed a
special prosecutor, Terence P. Houck, Esquire, to determine whether the
Attorney General improperly revealed information to the Scranton Times.
The special prosecutor prepared a confidential report for Judge Garb. Judge
Garb, in turn, authored a September 14, 2004 memorandum regarding the
matter before him. In that document, Judge Garb stated that Mr. Houck
“determined that there was no breach of secrecy by any Agent of the
Attorney General's Office.” Memorandum, Isaac S. Garb, 9/14/04, at 2. In
his September 14, 2004 decision, Judge Garb concurred with Mr. Houck’s
assessment. Id. He also expressed his personal opinion regarding the
veracity of the January 12, 2004 article. After he had reviewed Mr. Houck’s
report, the documents accompanying the report, and the transcript of the
testimony of the Commissioners, Judge Garb opined:
The reports published in these newspapers are completely
at variance with the transcript of the testimony of these
witnesses. The newspaper reports provide that the witnesses
were evasive in their answers, were non-cooperative, essentially
“stonewalled” the Grand Jury in its inquiry and that the Grand
Jurors became irate as a result of that demeanor on the
witnesses [sic] part, and demanded that they be “thrown out” of
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the Grand Jury courtroom. None of those things happened.
Obviously, if someone wished to leak the testimony of a witness
to the Grand Jury that information relayed to the media would
have reflected the testimony that actually occurred. The report
of the testimony of the witnesses was totally at variance and not
borne out by the record of the witnesses’ testimony. Obviously,
the source of the reporter’s information was someone not privy
to the Grand Jury proceedings and, therefore, not someone in
the Office of the Attorney General.
Id. at 2. Judge Garb also opined:
The reports in these newspapers which purport to be a reflection
of the testimony of Randall Castellani and Joseph Corcoran are
totally at variance with the transcript of their testimony before
the Grand Jury. The characterization of their testimony in the
newspaper reports is belied by the record. Each witness testified
unhesitatingly and with clarity. The witnesses were cooperative.
Their testimony was not vague. At no time did the Grand Jurors
become irate or indicate a readiness to throw the witnesses out
of the Grand Jury room.
Id. at 3.
Since the Scranton Times did not have a copy of the transcripts of
either of the Commissioners’ testimony, it could not determine if it concurred
with Judge Garb’s characterization of the transcripts. It published an article
four days later, on September 18, 2004, that reported on both the results of
Mr. Houck’s probe and Judge Garb’s memorandum. The September 18,
2004 story also contained three paragraphs about the contents of the
January 12, 2004 article. In its first mention of the January 12, 2004 article,
the September 18, 2004 publication stated that the subject matter of the
Houck probe involved “a story in the Jan. 12 editions of The Scranton Times
and The Tribune about Commissioner Randy A. Castellani and former
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Commissioner Joseph J. Corcoran’s testimony before the grand jury.”
Paragraph four read, “Citing a source close to the investigation, the
newspapers reported the commissioners often responded with vague,
evasive answers that irritated the jurors, who were ready to ‘yank each of
them out of the witness chair.’” In paragraph eight, the article said, “‘The
newspaper’s source has been contacted and says he absolutely stands by his
account of the grand jury testimony,’ said Lawrence K. Beaupre, managing
editor of the Times-Tribune newspapers.”
The remainder of the September 18, 2004 article discussed 1) the
Houck inquiry into the source of the grand jury leak; 2) the results of that
probe; 3) summaries of Judge Garb’s comments about the Commissioners’
grand jury testimony; 4) actual quotations from Judge Garb’s September 14,
2004 memorandum; 5) the nature of the allegations being explored by the
grand jury; and 6) the reaction of Lawrence J. Moran, the Commissioners’
attorney, to Judge Garb’s memorandum. The September 18, 2004 article
contained hearsay comments from Mr. Moran that implicitly revealed
Judge Garb’s opinion as to the falsity of the January 12, 2004 report:
Mr. Moran said Judge Garb’s memorandum validated his
clients’ contention that either the source lied about the
commissioners’ testimony or the newspapers fabricated the
story.
“Either way, on the basis of Judge Garb’s memorandum
and order, it seems that at a minimum the newspaper owes
something to Mr. Corcoran and Mr. Castellani,” Mr. Moran said.
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“That is, and on their behalf I demand, that the papers
publish a front-page story retracting and apologizing to
Mr. Corcoran and Mr. Castellani for the stories which have now
been indisputably established to have been false.”
He also called on the newspapers to identify their source,
saying any promise of confidentiality would seem to be “no
longer binding” based on Judge Garb’s order.
The Scranton Times, 1/12/04.
On September 16, 2005, the Commissioners instituted a second action
against the Scranton Times by writ of summons. In a complaint filed on
March 15, 2010, the Commissioners claimed defamation premised upon the
September 18, 2004 article. The Commissioners then petitioned to
consolidate the defamation case involving the September 18, 2004 article
with the already existing defamation lawsuit concerning the January 12,
2004 article. The Scranton Times opposed that request, arguing that
consolidation would be prejudicial and was merely a calculated effort by the
Commissioners to prove that the January 12, 2004 article was false by using
Judge Garb’s opinion as to its falsity, as outlined in the September 18, 2004
article. Consolidation was granted, and the defamation action regarding the
September 18, 2004 article was joined at this action number.
The Commissioners then presented a motion to the trial court asking
that the Scranton Times be required to disclose the anonymous source for its
January 12, 2004 article. That motion was granted, and the newspaper
appealed. We reversed based upon application of the Pennsylvania Shield
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Law, 42 Pa.C.S. § 5942.3 Castellani v. Scranton Times, L.P., 916 A.2d
648 (Pa.Super. 2007). Our Supreme Court affirmed our decision and
rejected the Commissioners’ request that the Court graft a “non-textual
‘crime-fraud’ exception to the Shield Law that would permit compelled
disclosure of a newspaper’s source if the communication between the
newspaper reporter and the source itself constituted a criminal act.”
Castellani v. Scranton Times, L.P., 956 A.2d 937, 939 (Pa. 2008).
While the parties were litigating whether the Scranton Times had to
reveal its source, the parties sought access to materials from the
investigating grand jury proceeding. Judge Garb had retired, and Judge
Barry F. Feudale was appointed as the supervising judge. The parties’
discovery requests were thus directed to Judge Feudale.
The Commissioners asked Judge Feudale to: 1) furnish the parties with
the transcript of Mr. Corcoran’s testimony; (2) permit the Commissioners to
____________________________________________
3
That provision states:
No person engaged on, connected with, or employed by any
newspaper of general circulation or any press association or any
radio or television station, or any magazine of general
circulation, for the purpose of gathering, procuring, compiling,
editing or publishing news, shall be required to disclose the
source of any information procured or obtained by such person,
in any legal proceeding, trial or investigation before any
government unit.
42 Pa.C.S. § 5942(a).
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furnish to the Scranton Times a copy of the transcript of Mr. Castellani's
grand jury testimony that had previously been erroneously released by the
prosecution at a preliminary hearing held for one of the defendants charged
in connection with the corruption at the jail; and (3) disseminate Mr. Houck’s
report to the Commissioners but not to the Scranton Times.
The Scranton Times also presented discovery requests to
Judge Feudale and asked him for (1) copies of the transcripts of the
Commissioners’ grand jury testimony; (2) copies of Mr. Houck’s report with
accompanying investigative material; (3) permission to interview Mr. Houck,
the jurors, and other people present in the grand jury room when the
Commissioners testified; (4) copies of transcripts of any discourse among
the Attorney General and the grand jurors about the Commissioners’
testimony; and (5) copies of any transcripts wherein Judge Garb or
Mr. Houck questioned the Attorney General’s agents.
On June 29, 2005, Judge Feudale issued a decision resolving all the
discovery requests pending before him. After analyzing the demands and
applicable law governing the secrecy of grand jury proceedings, he denied all
discovery requests with the exception that he held that the Commissioners
could furnish the Scranton Times with a copy of a previously-released
transcript of Mr. Castellani’s grand jury testimony. After resolving the issues
that he had been asked to address, Judge Feudale, as had Judge Garb,
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gratuitously opined as to the falsity of the January 12, 2004 article. Judge
Feudale echoed Judge Garb’s assessment of the veracity of that article.
In a sixteen-paragraph article that appeared on July 7, 2005, the
Scranton Times reported on Judge Feudale’s resolution of the discovery
requests. The article also outlined that Judge Feudale criticized the
January 12, 2004 story, and he stated that it had “no foundation in the
record of testimony under dispute before the grand jury.” The article
reported that Judge Feudale had castigated the newspaper’s request to
obtain interviews of people present during the Commissioners’ testimony
before the grand jury by calling that request “absurd” and “beyond the
pale.” To apprise the reader of the facts necessary for an understanding of
the July 7, 2005 article, said article stated in paragraph four:
Mr. Castellani and Mr. Corcoran claim they were defamed
in a Jan. 12, 2004 article published by The Times-Tribune
describing their testimony before the grand jury as vague and
evasive. The article cited an anonymous source close to the
investigation. The former commissioners claim the story is false.
The newspaper stands by its report.
In another paragraph, the July 7, 2005 story outlined that the editor of the
newspaper believed that its reporting eventually would be vindicated.
The July 7, 2005 article also noted that the trial judge supervising this
consolidated defamation case had ordered the newspaper to reveal its secret
source named in the January 12, 2004 story, and that Judge Feudale had
praised that ruling. The July 7, 2005 article continued that Judge Feudale
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additionally said that “he would have gone further – he would have
summoned former reporter Jennifer L. Henn and her editors and ordered
them to reveal their source” or face contempt. Finally, the July 7, 2005
article outlined that the Commissioners’ attorney was elated by
Judge Feudale’s remarks since they gave the Commissioners “tremendous
momentum” in that Judge Feudale concluded that the Commissioners “had
testified truthfully, candidly and completely.”
After the Supreme Court affirmed this Court’s order vacating resolution
of the trial court order mandating that the Scranton Times reveal its source
for the January 12, 2004 article, matters resumed before the trial court.
Countervailing motions for summary judgment were denied. The parties
then asked the trial court to resolve certain evidentiary matters. The
Commissioners sought permission to admit into evidence the full decision
authored by Judge Garb on September 14, 2004, as well as the one penned
by Judge Feudale on June 29, 2005. The Scranton Times opposed that
requested relief. On June 8, 2011, the trial court concluded that those
memoranda were inadmissible hearsay opining on a key issue at trial, i.e.,
the falsity of the January 12, 2004 newspaper article. Thus, it denied the
Commissioners’ request that the two judicial opinions be admitted into
evidence at trial in this matter.
The Commissioners were granted permission to file an interlocutory
appeal from the June 8, 2011 ruling. On appeal, we affirmed, holding that
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“the Garb Opinion and the Feudale Opinion are incompetent evidence” and
that “both Opinions are inadmissible in their entirety as separate documents
at trial.” Castellani v. The Scranton Times, L.P., 100 A.3d 304
(Pa.Super. 2014) (Castellani I) (unpublished memorandum at 52).
On June 8, 2011, the trial court also resolved a pending issue of
whether the September 18, 2004 article was admissible in connection with
the jury’s resolution of the merits of the defamation lawsuit as to the
January 12, 2004 article. The trial court determined that the September 18,
2004 article constituted a republication of the first article, and was
admissible pursuant to Weaver v. Lancaster Papers, Inc., 926 A.2d 899
(Pa. 2007). In Weaver, our Supreme Court held that the fact that a party
republished the contents of the statement after being instructed that it was
false constituted evidence that the party published the first false,
defamatory statement with actual malice.4
____________________________________________
4
In Weaver, the plaintiff was a police officer, Robin Weaver, who had
investigated a murder. A woman was tried and convicted for the crime, and
obtained relief in federal court. The federal court accused Weaver and his
fellow investigating officers of fabricating and destroying evidence and of
perjury. During the federal habeas proceeding, the convicted defendant also
claimed that Weaver raped her. No rape charges were filed against Weaver.
Based on these events, a letter to the editor from Oscar Brownstein was
published by two newspapers. That letter insinuated that the convicted
defendant had not fabricated her rape charges and stated that Weaver had
been “arraigned for the sexual abuse of women and children.” Weaver v.
Lancaster Papers, Inc., 926 A.2d 899, 901 (Pa. 2007).
(Footnote Continued Next Page)
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Applying Weaver, the trial court in this matter concluded that, even
though Judge Garb’s memorandum itself was inadmissible at trial, the full
September 18, 2004 story, including those portions of that document
outlining and quoting the jurist’s infirm hearsay, was admissible as evidence
of actual malice since the September 18, 2004 article constituted a
republication of the January 12, 2004 article.
The Scranton Times filed a motion for reconsideration of the June 8,
2011 interlocutory order on July 15, 2011. In that motion, the Scranton
Times sought the exclusion of the September 18, 2004 article on the ground
that its relevance was significantly outweighed by the danger of unfair
prejudice. Pa.R.E. 403 (“The court may exclude relevant evidence if its
probative value is outweighed by a danger of one or more of the following:
unfair prejudice, confusing the issues, misleading the jury, undue delay,
_______________________
(Footnote Continued)
Weaver instituted a defamation lawsuit against Brownstein and the
newspapers that published Brownstein’s letter. Weaver averred that he did
not rape the defendant, had not been charged with that crime, and was
never arraigned for sexually abusing women and children. Three months
after the defamation case was filed, Brownstein republished his entire letter
on a website.
The newspapers and Brownstein filed motions for summary judgment in
Weaver’s defamation action. Those motions were granted based on the
conclusion that Weaver could not prove that the three defendants acted with
actual malice. We affirmed, and our Supreme Court reversed, but only as to
Brownstein. It held that Brownstein’s republication of his entire letter after
being told that it was false was relevant to his actual malice in connection
with publishing it in the first instance.
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wasting time, or needlessly presenting cumulative evidence.”).
Alternatively, the Scranton Times asked that the issue of falsity of the
January 12, 2004 article be bifurcated from the other liability questions at
trial so that the September 18, 2004 article, which was relevant only as to
actual malice, would not be used by the jury in resolving the issue of the
January 12, 2004 story’s falsity.
At the August 8, 2011 argument on the July 15, 2011 motion for
reconsideration, the Scranton Times requested three forms of relief from the
June 8, 2011 ruling. First, it petitioned the court to reconsider its decision
that the September 18, 2004 article constituted a republication under
Weaver. It also asked that the portions of the September 18, 2004 article
relating to Judge Garb’s hearsay comments on the January article’s falsity be
redacted. Finally, it asked for bifurcation of either the two actions or of the
issue of falsity of the January 12, 2004 article from the remaining issues at
trial.
On August 19, 2011, the trial court concluded that the July 15, 2011
motion was premature. However, on March 23, 2012, shortly before the
anticipated trial, the trial court issued a definitive ruling on the Scranton
Times’ requests. It re-affirmed its decision to consolidate the two actions
and rejected the Scranton Times’ request to bifurcate the trial on the
January 12, 2004 article from the trial on the September 18, 2004 article. It
acknowledged:
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There is little question that a certain quantum of prejudice
will result from the introduction of the second article of
September 18, 2004. The publication of Judge Garb’s findings
concerning the testimony of both Plaintiffs strikes at the heart of
one of the threshold issues for resolution. If the article is
permitted to be introduced unredacted, the jury will hear and
see, among other information, that Judge Garb concluded that
the newspaper reports “are completely at variance with the
transcript of the testimony . . .”
The degree of prejudice [to the newspaper] and whether it
can be cured through a curative instruction is one capable of
varying opinions.
Trial Court Opinion, 3/23/12, at 3-4. The trial court likewise refused to
bifurcate the issue of the falsity of the January 12, 2004 article and have
that issue decided first. The trial court opined that bifurcation was a
“daunting task” since the questions of falsity and malice were interwoven.
Id. at 5. It also premised its ruling upon the belief that submitting the
question of the falsity of the January 12, 2004 article to the jury first before
proceeding to ask it to decide the falsity of the September 18, 2004 article
and whether the Scranton Times acted with actual malice “would essentially
be stripping the plaintiffs of their second cause of action.” Id.
On March 30, 2012, the Commissioners petitioned the trial court to
rule that the July 7, 2005 article also was a republication of the January 12,
2004 article and admissible in full at trial under Weaver. The Scranton
Times opposed this demand, but on April 11, 2012, the trial court held that
the July 7, 2005 article was a republication. It also refused the Scranton
Times’ request for redaction of Judge Feudale’s remarks in the July 7, 2005
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article, from the jury’s consideration and for bifurcation of the falsity/malice
issues. The Scranton Times obtained permission for interlocutory review of
both the March 23, 2012, and April 11, 2012 orders. In that appeal from the
two orders, the following issues were raised:
1. Whether the Trial Court erred in finding that the September
18, 2004 Article and the July 7, 2005 Article, respectively
reporting on the Garb Memorandum and Feudale Opinion,
constituted admissible evidence as to whether the Scranton
Times published the January 12, 2004 Article with actual malice,
under the Pennsylvania Supreme Court's decision in Weaver v.
Lancaster Newspapers, Inc., 926 A.2d 899 (Pa. 2007).
2. Whether the Trial Court erred in refusing to exclude the
September 18, 2004 Article and the July 7, 2005 Article on the
basis that the danger of unfair prejudice caused by the
admission of this evidence on the threshold issue of falsity
outweighed the marginal probative value of this evidence on the
issue of actual malice under Pa. R. Evid. 403.
3. Whether the Trial Court erred in refusing to bifurcate the issue
of falsity of the January 12, 2004 Article from the remainder of
issues in this jury to minimize the danger of unfair prejudice to
the Scranton Times caused by the exposure of the jury to the
September 18, 2004 Article and the July 7, 2005 Article, prior to
the jury deciding if the January 12, 2004 Article was false.
Castellani v. Scranton Times, 105 A.3d 29 (Pa.Super. 2014) (unpublished
memorandum at 20) (Castellani II).
In Castellani II, we affirmed the trial court’s ruling that the
September 18, 2004 and July 7, 2005 articles constituted republications
under the Supreme Court’s decision in Weaver, supra. We therefore held
that the latter two articles could be introduced to establish malice. This
Court in Castellani II then addressed the second contention raised by the
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Scranton Times. As noted, that newspaper asserted that the September and
July articles, even if republications, were inadmissible in that their probative
value as to actual malice was outweighed by their prejudicial impact on the
question of falsity. We concurred with this assessment. The latter two
articles, as republications, were pertinent only as to actual malice.
Meanwhile, as observed by the Scranton Times, other sections of the
September 18, 2004 and July 7, 2005 articles contain highly prejudicial
hearsay from judges regarding the falsity of the January 12, 2004 article,
summarized the judicial opinions, and outlined inadmissible and
inflammatory hearsay remarks from Mr. Moran that inferentially revealed the
opinion of the two judges in question by trumpeting his clients’ vindication
by the jurists’ comments.
In ruling that Judge Garb’s and Judge Feudale’s remarks as to the
falsity of the first article had to be redacted, we relied in Castellani II upon
the outcome in Castellani I. As a reminder, the Castellani I decision
affirmed the trial court’s ruling that Judge Garb’s September 14, 2004
decision and Judge Feudale’s June 29, 2005 opinion constituted inadmissible
hearsay as to the falsity of the January 12, 2004 article, and that the jurists’
opinions as to that article’s falsity was not relevant as to malice since the
judicial opinions were issued after publication of the January 12, 2004
article.
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This Court additionally opined in Castellani I that, even if the
decisions authored by Judges Garb and Feudale constituted admissible proof
as to malice, they were highly prejudicial to the Scranton Times on the
question of falsity. The Castellani I Court ruled that any probative value of
the two memoranda as to malice was significantly outweighed by the
prejudice to the newspaper. In this connection, we noted that the jurists’
beliefs as to the January 12, 2004 article’s truth were of minimal probative
value in light of the fact that the opinions were premised solely upon a
review of transcripts, and that Judge Garb and Judge Feudale, not being
present during the Commissioners’ grand jury testimony, were incapable of
gauging the jurors’ reactions or whether the Commissioners’ testimony was
evasive due to the manner in which it was delivered. This Court continued
that these opinions as to falsity emanated from judges, and thus, would be
given great weight by the jury. The Castallani I Court ruled that the two
memoranda were “inadmissible hearsay and any limiting instruction would
be fruitless.” Castellani I (unpublished memorandum at 48).
Given the ruling in Castellani I, the Castellani II panel held that the
portions of the judges’ opinions that were reprinted or quoted or revealed in
the September 18, 2004 and July 7, 2005 articles were inadmissible and had
to be redacted and that the trial court abused its discretion when it ruled
that the entire September 18, 2004 and July 7, 2005 articles could be
submitted to the jury. This Court found that the infirm portions of the
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September 18, 2004 and July 7, 2005 articles had to be redacted before
those articles were admitted into evidence. In light of the trial court’s belief
that redaction was not possible, we redacted the articles ourselves. Based
upon our redaction decision, the Castellani II Court concluded that it was
unnecessary to bifurcate the issues of falsity from malice. Judge Gantman
dissented, concluding that the better course was to bifurcate the issues by
having the jury first determine whether the January 12, 2004 article was
false before it proceeded to examine the issues of the falsity of the
September 18, 2004 article and malice.
After this Court issued the decision in Castellani II, our Supreme
Court reversed Castellani I. Castellani v. Scranton Times, L.P., 124
A.3d 1229 (Pa. 2015) (“Castellani III”). It held that the September 14,
2004 opinion of Judge Garb and the June 29, 2005 opinion by Judge Feudale
could be introduced at trial as to malice alone. In so doing, our Supreme
Court expressly limited the purpose for which they could be submitted to the
jury, stating that the “the judicial opinions are admissible as evidence of the
Newspaper's state of mind.” Id. at 1231. The sole issue before the
Supreme Court was whether the decisions by Judges Garb and Feudale were
relevant and admissible “as evidence of the Newspaper’s malicious state of
mind[.]”. Id. at 1236. Indeed, the Commissioners maintained to the trial
court and our Supreme Court that the opinions would not be introduced to
establish the issue of falsity. In light of the fact that the Commissioners
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never claimed that the judicial opinions could be used to establish that the
January 12, 2004 article was false, the Supreme Court did not expressly rule
on that question.
Nevertheless, the Castellani III Court expressly stated that the
comments from Judges Garb and Feudale could not be used as proof of the
falsity of the January 12, 2004 article. It stated that, although the judicial
statements regarding the first article’s falsity “will undoubtedly be prejudicial
to the Newspaper,” the “potential for the jury to consider the judicial
opinions for an improper basis, such as evidence of the defamatory
statements' falsity, can be ameliorated by a limiting instruction to the jury
that it alone must decide whether the Newspaper's articles were published
with malice, and the judicial opinions were offered for the limited purpose of
supporting Appellants' claim in this regard.” Id. (emphasis added). In a
footnote associated with this aspect of its holding, the majority in Castellani
III did not opine as to whether bifurcation would provide a better solution
than a limiting instruction and accorded that task to the trial court.
Thus, our High Court stated that it would be improper for the jury to
consider the judicial opinions as proof that the contents of the January 12,
2004 article were false and that the jury could be given an instruction as to
the limited purpose for which it could use the statements by Judges Garb
and Feudale. Despite the fact that the comments would be limited to
establishing a state of mind, but not related to the article’s falsity, the
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Castellani III Court held that the probative value of the two judicial
opinions as to the Scranton Time’s state of mind outweighed any prejudicial
impact regarding their effect on the jury’s decision as to the issue of falsity.
Justice Eakin concurred that the decisions authored by Judge Garb and
Judge Feudale could be introduced to establish malice, but believed that a
limiting instruction would not be sufficient “to ensure the jury will not
consider these opinions as proof the publications were in fact false.” Id. at
1246. That jurist concluded that “it would be asking the impossible of
jurors” to demand that they ignore the strong opinions of Judges Garb and
Feudale that the first article was false and consider those statements only in
connection with the question as to whether the Scranton Times acted with
malice. Id.
Justice Eakin found that the judicial opinions were “unfairly prejudicial
if admitted before the jury finds the articles are in fact false,” and rejected
the majority’s conclusion that a limiting instruction would be sufficient to
cure this unfair prejudice and prevent the jury from considering the opinions
when deciding the issue of falsity. Id. He continued that the “general notion
of ‘amelioration by instruction’” was unrealistic in light of the fact that the
hearsay spoke directly to the issue of falsity, the declarants were judges,
and the jurors would presume that they had knowledge of the facts. Justice
Eakin stated, “I simply cannot agree the jurors will be able to disregard
statements made by two judges opining on facts that are required for the
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very basic determination the jurors are to make,” and that “[n]o matter the
length or repetition of precise and completely understandable legal
instructions, no matter the jurors' desire to abide thereby, we cannot unring
this bell.” Id. at 1247.
Justice Eakin rejected the idea that the “jurors will compartmentalize
this manifestly pertinent evidence, turning a deaf ear and a blind eye to
judicial statements, simply by telling them not to consider it[.]” Id. He
concluded that the cure to the problem would be simple: a “bifurcated trial
on the questions of malice and falsity would eliminate the fiction that a jury
could disregard the inadmissible evidence.” Id.
Chief Justice Saylor agreed with the majority that the opinions by
Judge Garb and Judge Feudale could be introduced on the question of
whether the Scranton Times acted with malice. But, like Justice Eakin, Chief
Justice Saylor disagreed with the Castellani III majority that a “cautionary
instruction can effectively eliminate any undue prejudice stemming from
exposure to these expressions” since they “speak directly and forcefully to
that very issue” and “are made by judicial officers,” to whom the jury would
give great weight. Id. at 1246. He found the fact that judges made the
statements would compound the prejudice to the Scranton Times. Chief
Justice Saylor agreed with Justice Eakin that the opinions were therefore
“inadmissible in a unified trial” and that “bifurcating the proceedings into
falsity and malice stages would go a long way toward eliminating any unfair
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prejudice that the Newspaper would otherwise suffer from introduction of
the judicial opinions.” Id. Chief Justice Saylor then observed that the
bifurcation issue was not before the Supreme Court at that juncture, but had
been raised in the present appeal. Id. at 1246 n. 1.
After our Supreme Court reversed Castellani I, it granted allowance
of appeal of this panel’s decision in Castellani II and issued the following
directive:
AND NOW, this 3rd day of March, 2016, the Petition for
Allowance of Appeal is GRANTED. The Superior Court's decision
is VACATED, and the matter is REMANDED to the Superior
Court for further proceedings consistent with our decision in
Castellani v. Scranton Times, L.P., ––– Pa. ––––, 124 A.3d
1229, 1231 (2015).
Castellani v. Scranton Times, L.P., 133 A.3d 5 (Pa. 2016).
This panel ordered new briefs and held oral argument on August 2,
2016, and we now reconsider our decision in Castellani II based upon our
Supreme Court’s holding on appeal in Castellani I. The Scranton Times
confined its challenge to that aspect of the March 23, 2012 order denying its
motion for bifurcation.
Whether the Trial Court erred in refusing to bifurcate the
issue of falsity of the January 12, 2004 Article from the
remainder of issues in this jury trial to minimize the danger of
unfair prejudice to the Scranton Times caused by the exposure
of the jury to the September 18, 2004 Article and the July 7,
2005 Article, prior to the jury deciding if the January 12, 2004
Article was false.
Appellants’ brief on remand at 5.
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Initially, we note that, “The decision whether to bifurcate is entrusted
to the sound discretion of the trial court, which is in the best position to
evaluate the necessity for such measures.” Gallagher v. Pennsylvania
Liquor Control Bd., 883 A.2d 550, 557 (Pa. 2005). Thus, the appellate
court must determine if the trial court’s bifurcation decision “is a reasonable
exercise of its discretion in this respect.” Stevenson v. Gen. Motors Corp.,
521 A.2d 413, 419 (Pa. 1987). We will not find an “abuse of discretion
unless the law has been overridden or misapplied or the judgment exercised
was manifestly unreasonable, or the result of partiality, prejudice, bias, or ill
will, as shown by the evidence in the certified record.” Biese v. Biese, 979
A.2d 892, 895 (Pa. Super. 2009)
Bifurcation is permissible under Pa.R.C.P. 213, which states: “The
court, in furtherance of convenience or to avoid prejudice, may, . . . on
motion of any party, order a separate trial of any cause of action, claim, or
counterclaim, set-off, or cross-suit, or of any separate issue . . . .”
Pa.R.C.P. 213(b) (emphasis added). Our Supreme Court has observed that
“bifurcation should be carefully and cautiously applied and be utilized only in
a case and at a juncture where informed judgment impels the court to
conclude that application of the rule will manifestly promote convenience
and/or actually avoid prejudice.” Stevenson, supra at 419 (citation
omitted).
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In order to review the decision to deny bifurcation, it is helpful to bear
in mind the elements of a cause of action for defamation. A cause of action
for defamation in this Commonwealth is set forth in § 8343 of The Uniform
Single Publication Act, 42 Pa.C.S. §§ 8341-8345, as follows:
(a) Burden of plaintiff.--In an action for defamation, the
plaintiff has the burden of proving, when the issue is properly
raised:
(1) The defamatory character of the
communication.
(2) Its publication by the defendant.
(3) Its application to the plaintiff.
(4) The understanding of the recipient of its
defamatory meaning.
(5) The understanding by the recipient of it as
intended to be applied to the plaintiff.
(6) Special harm resulting to the plaintiff from its
publication.
(7) Abuse of a conditionally privileged occasion.
(b) Burden of defendant.--In an action for defamation, the
defendant has the burden of proving, when the issue is
properly raised:
(1) The truth of the defamatory communication.
(2) The privileged character of the occasion on
which it was published.
(3) The character of the subject matter of
defamatory comment as of public concern.
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42 Pa.C.S. § 8343.
While the statute places the burden on a defendant to establish that a
defamatory communication is true, there are First Amendment implications
in a case where the defendant is a member of the media or the article
involves a public figure or matter of public interest, such as the case herein.
“If the statement in question bears on a matter of public concern, or the
defendant is a member of the media, First Amendment concerns compel the
plaintiff to prove, as an additional element, that the alleged defamatory
statement is in fact false.” Lewis v. Philadelphia Newspapers, Inc., 833
A.2d 185, 191 (Pa.Super. 2003). “If the plaintiff is a public official or public
figure, [he] must prove also that the defendant, in publishing the offending
statement, acted with actual malice, i.e. with knowledge that [the
statement] was false or with reckless disregard of whether it was false or
not.” Id.; see Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767
(1986) (under First Amendment, if media article relates to matter of public
concern, private plaintiff has burden of proving defamatory statement is
false); New York Times Co. v. Sullivan, 376 U.S. 254 (1964) (to protect
First Amendment free speech rights, public officials must prove falsehood of
media statement in defamatory case and must prove media defendant acted
with actual malice). As can be seen from above, if the plaintiff is a public
figure, the plaintiff must also prove, as part of his case, that the defendant
acted with actual malice in publishing the statement.
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The Commissioners initially maintain that the Scranton Times’ renewed
motion to bifurcate is legally infirm, and that Castellani III confirmed that
position. We disagree. The bifurcation issue was not presented in the
appeal before our Supreme Court. The issue before the Castellani III
Court was only whether the opinions by Judges Garb and Feudale were
inadmissible hearsay. See Castellani v. Scranton Times, L.P., 124 A.3d
1229, 1246 n. 1 (Pa. 2015) (Chief Justice Saylor’s concurring and dissenting
opinion) (“The bifurcation issue was presented to the Superior Court in a
separate interlocutory appeal.”) Although the Supreme Court discussed the
issue of bifurcation, any comments constituted dicta since that issue was not
included within the allocatur grant. This matter was remanded back to the
Superior Court specifically to address the denial of the bifurcation by the trial
court.
Herein, the trial court concluded that the September 18, 2004 and July
7, 2005 articles, which contained the key aspects of the Garb and Feudale
opinions, were admissible at the consolidated trial. Due to that ruling, the
Scranton Times requested issue bifurcation so that the judicial opinions
outlined in the September 18, 2004 and July 7, 2005 articles would not be
utilized by the jury in its deliberations over whether the Commissioners
established that the January 12, 2004 article was false. The order on appeal
is the one where the trial court denied the bifurcation requests made by
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Scranton Times. We thus reject the Commissioners’ position that the
bifurcation issue is not properly before this panel.
The Commissioners next argue that the Supreme Court decision is law
of the case and precludes us from ordering bifurcation. They note that the
Court pronounced that a curative instruction would ameliorate any prejudice
inuring to the Scranton Times from introduction of the Garb and Feudale
opinions. However, the Castellani III Court did not, to any extent,
examine the issue of bifurcation and whether bifurcation would be a better
solution to the prejudice problem. As Chief Justice Saylor noted, the
bifurcation issue was not before the Supreme Court but was presented in
this appeal.
In fact, the majority in Castellani III expressly stated that the
bifurcation issue could be revisited despite its comments on the curative
instruction. The majority responded to dissents from Chief Justice Saylor
and Justice Eakin by stating that “with respect to the responsive opinions'
suggestion that the solution to the potential for any unfair prejudice is to
bifurcate the falsity and malice elements, we view this decision as
appropriate for the trial court upon remand if requested by the
Newspaper.” Castellani III, 124 A.3d at 1245 n. 13. Since the trial
court’s decision to deny bifurcation was still pending before this court, it was
unnecessary to remand to the trial court. Thus, the majority decidedly did
not foreclose a finding that the issue of the falsity of the September 18,
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2004 article could be bifurcated from the remaining issues. Instead, it
specifically ruled that the trial court could decide that bifurcation was
appropriate. Thus, we reject the Commissioners’ argument that the
Supreme Court’s decision implicates the law of the case doctrine and
precludes this panel from granting bifurcation.
In support of the denial of bifurcation, the Commissioners, in their
fifty-nine page brief, next echo the trial court’s reasons for denying
bifurcation. The trial court herein justified its refusal to bifurcate on two
grounds. As noted supra, its ruling in that respect was first premised upon
its conclusion that bifurcation was a daunting task because the issues of the
falsity of the January 12, 2004 article and whether it was published with
actual malice were interwoven. The trial court also declined to bifurcate on
the basis that bifurcation would deny the Commissioners their day in court
as to the falsity of the September 18, 2004 article, which was the subject
matter of their second defamation suit.
The Commissioners claim that the trial court was correct that the
issues of falsity and actual malice are intertwined and interwoven and
bifurcation of those questions is not possible. We reject this argument.
Whether an article is false and whether a newspaper published it with actual
malice are not issues that are interwoven. As outlined above, these two
elements of a defamation cause of action are quite distinct. First, is the
article true? If the article is false, did a newspaper publish the false
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statement either knowing that it was false or without conducting enough
investigation so that it acted with reckless disregard as to the falsity of the
article? There is simply nothing intertwined in these two inquiries.
While the judicial opinions in question are inadmissible to establish
falsity, they can be introduced as proof of the issue of malice. By bifurcating
trial on the two questions, the Commissioners will not be prevented from
introducing evidence relevant to both issues. On the other hand, bifurcation
prevents the Scranton Times from suffering the clear prejudice inherent in
allowing the jury to hear the opinions of Judges Garb and Feudale that the
article in question was false and disproven by the record.
The Commissioners also maintain that the trial court did not abuse its
discretion since they would be prejudiced by bifurcation. Specifically, they
assert that the proposed bifurcation would strip the “Commissioners of their
ability to prove critical aspects of their consolidated defamation actions, as
the bifurcated proceedings would have removed from the jury’s
consideration the falsity of the September 18, 2004 article.” Appellees’ Brief
on Remand at 46 (emphasis added). Bifurcation decidedly does not deny
the Commissioners their day in court as to the September 18, 2004 article.
If they prevail on the falsity of the January 12, 2004 article, they are
assured of a finding of falsity on the second article that is the subject of this
lawsuit.
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Indeed, the September 18, 2004 article has been characterized as a
republication of the January 12, 2004 article. If the latter is false, then it
necessarily follows that the former is untrue. Thus, the bifurcation in
question does not deny the Commissioners their day in court as to the
September 18, 2004 article; it eases their burden. If the jury finds that the
January 12, 2004 article is false, that determination becomes dispositive as
to the falsity of the September 18, 2004 article. They will have their day in
court.
Moreover, the fatal flaw in this position is that the Commissioners want
to prove a critical aspect of their consolidated lawsuits, i.e., the question of
falsity, by having the jury consider evidence that has been unequivocally
ruled to be irrelevant on that question. Indeed, the Commissioners’ own
argument establishes how important the opinions of Judges Garb and
Feudale are to them on the question of whether the January 12, 2004 is
untrue. However, those judicial opinions are inadmissible on the question of
falsity. The Commissioners’ argument in this respect does nothing more
than reinforce the finding that the Scranton Times would be severely
prejudiced if the jury had those opinions during its deliberation of whether
the January 12, 2004 article is false. Simply put, the Commissioners cannot
be prejudiced by being unable to use evidence that is not relevant as to
falsity to, in fact, establish falsity.
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Concomitantly, we discount the Commissioners’ position that
bifurcation must be denied because “the same evidence is relevant to both
aspects of the issues upon which [the Scranton Times] seeks bifurcation.”
Id. at 49. The bottom line is that these two judicial opinions are
inadmissible as to falsity and can be introduced only as to actual malice.
Thus, the proof in question is unequivocally not relevant “to both aspects” of
the issues upon which the Scranton Times seeks bifurcation.
We find our decision in Coleman v. Philadelphia Newspapers, Inc.,
570 A.2d 552 (Pa.Super. 1990), is instructive on the bifurcation question.
Coleman, who was president of Philadelphia City Council, sued for
defamation as to an article that accused him of engaging in a practice of
nepotism to fill city jobs. The trial court bifurcated the trial, asking the jury
to first consider whether the article was true and the newspaper acted with
actual malice. If those questions were answered in Coleman’s favor, the
trial court planned to submit to the jury the issues of whether the
statements were capable of defamatory meaning and whether Coleman
sustained damages.
The jury found that the newspaper did not act with actual malice; it
did not render a decision on the veracity of the article, and the remaining
two issues were not submitted to it for consideration. On appeal, Coleman
complained that the court’s bifurcation decision was in error, but we
disagreed. Coleman argued that bifurcation of liability from the other issues
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prejudiced him since he was not allowed to present relevant proof about the
defamatory nature of the defendant’s statements. He suggested that the
defamatory character of a publication was an issue that could not be clearly
categorized as either a liability or a damage issue, and that a publication’s
defamatory nature was inexorably interwoven with both the liability issue
and the damage issue.
The Coleman Court noted that bifurcation is discouraged when
evidence relevant to both the bifurcated issues would be excluded in one
portion of the trial, resulting in prejudice to the party seeking to avoid
bifurcation. It noted, however, that “bifurcation is strongly encouraged
and represents a reasonable exercise of discretion where the separation of
issues facilitates the orderly presentation of evidence and judicial economy,
. . . or avoids prejudice[.]” Id. at 555 (emphases added).
This Court concluded that the bifurcation in question was appropriate
since it allowed the jury to first focus on truth and malice, avoiding a trial on
damages. We additionally observed that prejudice to the newspaper was
avoided since Coleman may have been able to “to garner sympathy from the
jury in establishing liability by use of damage evidence.” Id. at 556. The
Coleman Court also noted that, at the trial, Coleman had been permitted to
introduce proof that was relevant both as to falsity/actual malice and as to
defamatory nature of the statements in the article. See also Ptak v.
Masontown Men's Softball League, 607 A.2d 297, 300 (Pa.Super. 1992)
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(bifurcation of liability and damage upheld since it “insured that the jury's
decision as to liability would not be tainted by sympathy for appellant,
occasioned by the severity of his injuries”).
In the final arguments in their brief, the Commissioners present
hyperbolic, repetitive, and longwinded arguments that seek to justify the
trial court’s bifurcation decision on the grounds articulated by the trial court,
which we have rejected. The issues of falsity and malice are not interwoven
and intertwined, and the judicial opinions are not admissible as proof on the
former, discrete question. The Commissioners also will not be deprived of
their ability to proceed in the second defamation suit due to the bifurcation.
After careful review, we hold that the trial must be bifurcated as
follows. The jury will first determine whether the Commissioners met their
burden of proof that the contents of the January 12, 2004 article are false.
If it finds in favor of the Commissioners as to that question, the September
18, 2004 article, as a republication is perforce rendered false. The jury will
then proceed to determine, with the benefit of the opinions by Judges Garb
and Feudale, whether the Scranton Times acted with actual malice when
publishing the January 12, 2004 and September 18, 2004 articles. We
conclude that it is absolutely necessary for the jury to decide first and
separately the falsity of the January 12, 2004 article from the remaining
issues to avoid significant prejudice to the Scranton Times, and we agree
with the Scranton Times that the bifurcation ruling must be reversed.
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We conclude that bifurcation is necessary for the following reasons.
The two jurists, Judges Garb and Feudale, expounded forceful and
unequivocal opinions that the statements in the January 12, 2004 article
that form the basis for these defamations lawsuits were categorically false.
The opinions emanated from judges, respected individuals in the community.
Any juror would presume that the jurists knew about the matter, even
though the opinions were founded upon a cold reading of the record and
were not based upon an actual view of the grand jurors’ reaction to the
Commissioners’ performances. Indeed, during its reversal of Castellani I,
our Supreme Court openly acknowledged that two judicial opinions, as
unequivocal condemnations of the article’s falsity, “will undoubtedly be
prejudicial to the Newspaper.” Castellani III, supra 124 A.3d at 1245. In
Coleman and Ptak, we upheld a determination that bifurcation was in order
since the jury could be prejudiced and might find the defendants liable based
upon the severity of the damages suffered by the plaintiffs. The prejudice
inuring to the Scranton Times from these judicial opinions is obvious and
more extreme than that examined in Coleman and Ptak. We therefore
conclude the evidence in question is so prejudicial that bifurcation is
necessary.
We thus reverse the March 23, 2012 order and remand this case with
instructions. The issues in this consolidated lawsuit are to be bifurcated.
The jury must first determine whether the January 12, 2004 article is false.
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At that phase of the trial, the following evidence is inadmissible: the
September 14, 2004 opinion by Judge Garb, the June 29, 2005 opinion by
Judge Feudale, the September 18, 2004 article, and the July 7, 2005 article.
If the jury determines that the January 12, 2004 article is false, the
September 18, 2004 article’s falsity will be established. The jury will then
determine, with the use of the outlined evidence, whether the Scranton
Times acted with malice.
Order reversed. Case remanded with instructions. Jurisdiction
relinquished.
Judge Olson joins the opinion.
Judge Gantman concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/26/2017
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