Castellani v. Scranton Times, L.P.

RANDALL A. CASTELLANI AND JOSEPH J. CORCORAN Appellants v. THE SCRANTON TIMES, L.P. AND JENNIFER L. HENN Appellees

J-A03021-13

No. 907 MDA 2012

SUPERIOR COURT OF PENNSYLVANIA

FILED: MARCH 11, 2014

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Order Entered August 19, 2011

In the Court of Common Pleas of Lackawanna County

Civil Division at No(s): 2005 CV 69

BEFORE: BOWES, J., GANTMAN, J., and OLSON, J.

MEMORANDUM BY GANTMAN, J.:

Appellants, Randall A. Castellani and Joseph J. Corcoran ("Commissioners"), appeal from the order entered in the Lackawanna County Court of Common Pleas, in this defamation case, which denied their pretrial motion to admit two judicial Opinions at trial as evidence of actual malice.¹ We affirm.

The relevant facts and procedural history of this case are as follows. Mr. Castellani and Mr. Corcoran are former Commissioners of Lackawanna County and members of the Lackawanna County Prison Board. In 2003, thestate Attorney General's Office began an investigation into alleged corruption at the Lackawanna County Prison. The criminal investigation progressed to a statewide grand jury. The Commissioners each testified before the grand jury on December 2, 2003.

The prison scandal was news in the Lackawanna County area. Appellees, the Scranton Times, L.P. and Jennifer L. Henn (collectively "newspaper"), on January 12, 2004, published articles in the morning and evening editions (collectively "January 12, 2004 article") reporting on the Commissioners' grand jury testimony. The story was headlined "Dems Stonewall" and cited a "confidential source" close to the investigation who described the Commissioners' testimony as "vague," "less than candid," and "evasive." The story quoted the source as saying the grand jurors believed the Commissioners were "less than cooperative" and the jurors were so irritated with the Commissioners that the jurors were "ready to throw both of them out." (See Jennifer L. Hein, Dems Stonewall, Jan. 12, 2004; R.R. at 0014.)

Senior Judge Isaac S. Garb was the supervising judge of the grand jury at that time. On January 29, 2004, the Commissioners filed a petition for sanctions with Judge Garb in connection with the newspaper's disclosure of the secret grand jury proceedings. The petition was discharged on the ground that the Commissioners lacked standing to request a proceeding to determine whether unauthorized information had been revealed by personssworn to secrecy. A second petition was filed for relief in the form of sanctions against the Attorney General or his agents. The matter was continued pending an ongoing investigation by an independent special prosecutor whom Judge Garb had appointed to examine whether any person bound by grand jury secrecy laws had improperly leaked information. The independent special prosecutor presented his report to Judge Garb in the summer of 2004 ("Report"). The Report has not been disclosed. Judge Garb reviewed the Report and the transcripts from the Commissioners' testimony before issuing a memorandum ("Garb Opinion").² In his written decision, Judge Garb referred to the Report, which found no breach by any agent of the Attorney General's Office. Judge Garb said he had reviewed the Report, and all the documents filed with it, including the testimony of the Commissioners, as well as the newspaper articles, and concurred that no leak came from any agent of the Attorney General's Office, which was the sole issue before the court at that time.

Judge Garb went on to express his personal belief that the newspaper reports were completely at variance with the transcript of the testimony of the Commissioners. (See Garb Opinion, dated September 14, 2004, at 2; R.R. at 0023.) Judge Garb unequivocally concluded that none of the thingsreported in the newspaper truly happened. Id. Judge Garb surmised that any bona fide "leak" of information to the media would have reflected the testimony that actually had occurred at the grand jury proceedings. Given the disparity he saw between the actual testimony and the newspaper's article, Judge Garb queried whether the "source" of the reporter's information was in fact someone who was not really privy to the proceedings at all.

Following Judge Garb's opinion, the newspaper published articles on September 18, 2004 (collectively "September 18, 2004 article"), titled "Judge: Account of Testimony Was Incorrect" and subtitled "Castellani, Corcoran cooperative, he says the transcript shows." Citing accurate snippets from the opinion, the article ended with a quote from the newspaper's Managing Editor, Lawrence Beaupre, stating: "The newspaper's source has been contacted and says he absolutely stands by his account of the grand jury testimony." (See David Singleton, Judge: Account of Testimony Was Incorrect, Sept. 18, 2004; R.R. at 0018.) The newspaper essentially ratified its January 12, 2004 account.

On December 11, 2004, counsel for the Commissioners sent a letter to the newspaper demanding a published, prominent retraction and apology to mitigate the alleged harm caused by the newspaper's January 12, 2004 and September 18, 2004 articles. The Commissioners then filed a complaint in defamation on January 7, 2005, against the newspaper, relating to theJanuary 12, 2004 article reporting on the Commissioners' grand jury testimony, along with a motion to compel disclosure of the "unnamed source" referred to in the articles published on January 12, 2004.³ The Commissioners also instituted a second claim for defamation by writ of summons in 2005 under a different docket number,⁴ with respect to the September 18, 2004 article summarizing the Garb Opinion and ratifying the January 12, 2004 article.

In 2005, both sides sought access to the grand jury transcripts as a means to support their respective positions in the defamation action. To that end, the parties filed motions with Judge Barry Feudale, who had succeeded Judge Garb as the supervising judge of the grand jury. The parties requested (1) release of Mr. Corcoran's grand jury testimony;⁵ (2)access to grand jury participants; and (3) a copy of the Report by the independent special prosecutor.

Judge Feudale filed an opinion ("Feudale Opinion") that denied the requests, concluding grand jury secrecy trumped any need to obtain the information for use in private civil litigation. (See Feudale Opinion, dated June 29, 2005; R.R. at 0025-0035.) With respect to the Commissioners' request for the Report of the independent special prosecutor, Judge Feudale stated emphatically that the request was unprecedented, as the investigatory process and Report fell within the ambit of grand jury secrecy, and the request for a copy of Mr. Corcoran's testimony was contrary to law, as that testimony is available only after the direct testimony of the witness at trial. Even if the inadvertent release of Mr. Castellani's testimony might arguably merit a similar release of Mr. Corcoran's testimony, the second release would nevertheless be premature and inappropriate, contrary to law, and not subject to waiver or compromise.

Judge Feudale then addressed what he expressly called a matter collateral to the motions before the court. Judge Feudale declared that the unnamed source and the newspaper had asserted and published alleged facts which they acknowledged were illegal to assert or publish, but then reaffirmed those facts while knowing they had no record to support the assertions. On the precise matters before the court, however, Judge Feudale refused to allow or approve any attempt to crack grand jurysecrecy, "no matter the circumstances or perceived equity of doing so; in contravention to the clear legislative and case law pronouncement that preclude such." (Id. at 16; R.R. at 0040). Judge Feudale entered an order that: (1) denied the motions to release the grand jury transcript of Mr. Corcoran; (2) granted the motion to furnish to the newspaper a copy of the previously released transcript of Mr. Castellani's grand jury testimony; (3) denied the motion for release of the Report of the independent special prosecutor; (4) denied the motion for permission to interview the grand jurors or other persons in the grand jury room, the independent special prosecutor, and the grand jury judge; (5) denied the motion for copies of the transcripts of any discourse between the senior deputy attorney general and the grand jurors from 12/2/03 to 1/12/04. (See Order, dated 6/29/05, at 1-2; R.R. at 0042-0043).

On July 7, 2005, the newspaper reported on the Feudale Opinion. In an article titled "Judge Won't 'Crack the Vault' of Grand Jury Secrecy," the newspaper described how Judge Feudale denied the motions for release of undisclosed grand jury materials. The article stated Judge Feudale had criticized the newspaper's reporting and, like Judge Garb, found the transcripts of the grand jury proceedings were at odds with the accounts contained in the newspaper's previous articles. The article also reported on the underlying defamation lawsuit to explain why the parties were seeking grand jury materials. Specifically, the article read as follows:

Mr. Castellani and Mr. Corcoran claim they were defamed in Jan. 12, 2004 article published by the [newspaper] describing their testimony before the grand jury as vague and evasive. The article cited to an anonymous source close to the investigation. The former commissioners claim the story is false. The newspaper stands by its report.

(Michael McNarney, Judge Won't "Crack the Vault" of Grand Jury Secrecy, July 7, 2005; R.R. 0020). The article also contained a quote from Managing Editor Beaupre, who stated: "This is a very disappointing decision in that both sides have been denied the opportunity to obtain information that is relevant to the case.... We remain confident that, at the end of the day, our reporting will be vindicated." Id.

After appellate review (regarding disclosure/nondisclosure of the newspaper's confidential source) concluded in 2008...