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GEORGE HATCHARD AND MT. POCONO AMC/JEEP v. WESTINGHOUSE BROADCASTING COMPANY AND KYW-TV 3 (01/24/86)

filed: January 24, 1986.

GEORGE HATCHARD AND MT. POCONO AMC/JEEP, INC.
v.
WESTINGHOUSE BROADCASTING COMPANY AND KYW-TV 3, APPELLANTS. ZIGMOND LEFKOSKI, JR. V. NEP COMMUNICATIONS, INC. APPEAL OF NEP COMMUNICATIONS, INC., T/D/B/A WNEP-TV NEWS



Appeal from the Order in the Court of Common Pleas of Philadelphia county, Civil No. 5727 October Term 1979. Appeal from the Order in the Court of Common Pleas of Luzerne County, Civil No. 2409-C 1984.

COUNSEL

Steven B. Feirson, Philadelphia, for Westinghouse, appellants, (at 2219).

Bruce Morgan, Scranton, for NEP, appellant, (at 1056).

Keith S. Erbstein, Philadelphia, for Hatchard, appellee (at 2219).

Charles J. Bufalino, Jr., Pittston, for Lefkoski, appellee (at 1056).

Spaeth, President Judge, and Wickersham, Brosky, Rowley, Wieand, Cirillo, Olszewski, Beck and Tamilia, JJ. Wickersham, Brosky, Olszewski and Beck, JJ., join in this opinion. Tamilia, and Cirillo, JJ., file dissenting opinions. Wieand, J., files a dissenting opinion which was joined by Rowley, J. Spaeth, President Judge, wrote this opinion before the expiration of his term on the court.

Author: Spaeth

[ 350 Pa. Super. Page 3]

Two appeals, which we consolidated and heard together, are before us. In one appeal, the trial court granted appellee Lefkoski's motion to compel production of a s and other documentary material, as well as filmed "outtakes;"*fn1 in the other the trial court granted appellee Hatchard's motion to compel production of outtakes, but denied his request for other documentary material. Appellants argue that these orders are erroneous because all the material is privileged under the Pennsylvania Shield Law, 42 Pa.C.S. § 5942(a),*fn2 as construed in In re Taylor, 412 Pa. 32, 193 A.2d 181 (1963). We agree with appellants that under Taylor the orders before us must both be reversed. This result, in our opinion, is unjust. The law has changed a good deal since Taylor was decided, and we believe those changes warrant reconsideration of Taylor. Such reconsideration, however, is not appropriate to our role as an intermediate appellate court. If it is to occur, it must be by the Supreme Court; or the Legislature

[ 350 Pa. Super. Page 4]

    may amend the Shield Law. Meanwhile, we are bound by Taylor. Both orders, therefore, will be reversed.

On November 7, 1979, appellees George Hatchard and Mount Pocono AMC/JEEP, Inc., ("Hatchard") sued appellants Westinghouse Broadcasting Company and KYW-TV ("KYW"), alleging that certain investigative reports broadcast in January and March 1979 defamed them. The reports, entitled "Wheeling and Dealing with City Hall," and "Follow to Wheeling and Dealing with City Hall," concerned the sale of millions of dollars worth of automobiles to the City of Philadelphia. In preparing the reports, the investigative team had videotaped interviews with Hatchard, as well as with numerous officials of the city government. On July 23, 1981, Hatchard filed the Motion to Compel the Production of Documents that is at issue here.*fn3 The motion sought: (1) all tapes, film, transcripts and other documentary material prepared by KYW during its investigation of Hatchard, but "excluding any such material that would reveal the identity of your sources pursuant to 42 Pa.C.S. § 5942;" and (2) all tapes, film and other documentary material prepared during KYW's interviews with Hatchard, and with eleven other named interviewees. Hatchard specified, however, that "in responding to [this request KYW] can exclude material referred to by those individuals which would, in turn, reveal the source of other material [KYW] deemed[ed] privileged." Motion to Compel, filed July 23, 1981. KYW opposed the motion, claiming, in part, that the Pennsylvania Shield Law protected documents,

[ 350 Pa. Super. Page 5]

    as well as persons, and that all the material sought was therefore privileged. Defendant's Reply Memorandum of Law in Opposition to Plaintiff's Motion to Compel Production of Documents, filed August 12, 1981, at pp. 8-14. On February 11, 1982, the trial court entered the following order:

Plaintiffs' Motion to Compel Production of Documents is granted and it is hereby Ordered that the Defendants are to produce the following documents within Thirty (30) days:

1. All tapes, film, transcripts, memoranda, etc., prepared by the I-Team, of statements by or interviews with Plaintiff, George Hatchard.

2. All tapes and/or film prepared by the I-Team, of statements by or interviews with the following:

     a. William Klenk

     b. Hillel Levinson

     c. Carl Biegler

     d. Richard Wills

     e. Bob Mindlin

     f. Francis Rizzo

     g. William Taylor

     h. Ben Wolf

In responding to items 1 and 2, Defendant shall not be required to produce any material where another source is revealed or where the material contains information which could reasonably lead to the disclosure of another source by the primary source (the people listed above). Plaintiff's request for the production of transcripts, memoranda or other notes prepared by the Defendants in conjunction with their interview of the above individuals is denied.

Following the trial court's denial of KYW's motion that the court amend this order, KYW took this appeal.*fn4

[ 350 Pa. Super. Page 6]

On June 25, 1984, appellee Lefkoski sued appellant NEP Communications, Inc., t/d/b/a WNEP-TV Channel 16 News ("NEP"), alleging that NEP's news report broadcast on May 28 and May 29, 1984, had conveyed the impression that Lefkoski's auto repair business, "Ziggy's South Wilkes-Barre Auto Body Shop," had engaged in questionable business practices. On July 23, 1984, Lefkoski requested, pursuant to Pa.R.C.P. 4009, that NEP produce the following:

1. All writings, photographs, tapes, films, scripts, sound reproductions, records, editorial records, and other compilations of data of, concerning or relating in any way to the following:

     a. Any investigation or investigations made by the defendant concerning the plaintiff and/or plaintiff's business, known as Ziggy's South Wilkes-Barre Auto Body Shop, Rear 611 South Main Street, Wilkes-Barre, PA 1870 [ sic ].

     b. Any information which on or before May 29, 1984 became known to the defendant concerning the plaintiff and/or plaintiff's said business.

     c. The interview conducted on or about May 23, 1984 by agents and/or employees of the defendant with the plaintiff at the aforesaid place of business of the plaintiff.

     d. The complete television news broadcasts transmitted by the defendant on May 28, 1984 and May 29, 1984 and in which the said broadcasts included any reference whatever to the plaintiff and/or plaintiff's said business.

     e. The anchor-intro to the aforesaid television news broadcasts.

[ 350 Pa. Super. Page 7]

    f. The teases to the aforesaid television news broadcasts.

     g. All matters edited from and/or omitted from the final form of the aforesaid interview and television news broadcasts.

R. at 3.*fn5

NEP opposed most of this request. While it agreed to provide materials it classified as "as broadcast,"*fn6 it refused to provide all other materials, claiming, among other matters, that all such material was privileged under the Pennsylvania Shield Law. Defendant's Response to Plaintiff's Request for Production of Documents at 1-2, R. at 6. On September 20, 1984, Lefkoski filed a Motion to Compel the Production of the requested material. R. at 7. After hearing, held on November 8, 1984, R. at 12, the trial court issued the following order:

NOW, this 21 day of February, 1985, at 9:10 o'clock, A.M., it is hereby ORDERED, ADJUDGED and DECREED that, consistent with the annexed Decision, Defendant shall respond to the Request of Plaintiff for Production and Inspection of Documents in possession of Defendant under Pa.Rule of Civil Procedure 4009, within thirty (30) days from the date of this Order."

R. at 13.

On March 28, 1985, the trial court granted NEP's request that it amend its order to include certification of its ruling to us, as well as a stay pending appeal, pursuant to 42

[ 350 Pa. Super. Page 8]

Pa.C.S. § 702(b). R. at 15. On May 7, 1985, we granted NEP's petition for permission to take this interlocutory appeal. R. at 14.

All parties to these appeals agree that the dispositive issue is whether the Pennsylvania Shield Law absolutely protects from civil discovery all documentary material -- notes, memoranda, films and tapes -- prepared in connection with the news broadcasts that appellees claim are defamatory. See Brief for Appellant KYW at 7; Brief for Appellee Hatchard at 1; Brief for Appellant NEP at 4; Brief for Appellee Lefkoski at 1.

The Pennsylvania Shield Law, 42 Pa.C.S. § 5942(a), provides:

Confidential communications to news reporters.

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. (emphasis supplied)

The statute's coverage, and our decision here, is therefore controlled by the definition of the term "source of any information." Judge GREENBERG, in Hatchard, reasoned that since the policy of the Shield Law was to protect the identity of confidential informants, the term "source of any information" must refer to such informants. He concluded, accordingly, that the statute did not protect documentary material, unless that material had the potential of revealing the identity of confidential "sources." He therefore ordered that KYW produce the requested outtakes, but not other notes and documents, because "[appellees] in the instant case are not seeking to learn the identity of any confidential source through the outtakes." Slip op. of tr. ct. at 7. Judge BROMINSKI similarly based his decision to grant Lefkoski's Motion to Compel upon his conclusion that

[ 350 Pa. Super. Page 9]

"[t]he Shield Law plainly and unequivocably protects only 'the source of any information' procured by the [appellant] . . . . [I]t does not protect the information requested itself. . . ." Slip op. of tr. ct. at 10-11 (emphasis in original).

In In Re Taylor, 412 Pa. 32, 193 A.2d 181 (1963), our Supreme Court ruled on the issue before us, that is, the construction we must place upon the term "source of any information" in our Shield Law.*fn7 As this court has not addressed the issue, Taylor is the only appellate case from this jurisdiction that is directly in point.

In Taylor, a grand jury investigating political corruption within the Philadelphia city government served a subpoena duces tecum upon Robert Taylor, president of the Philadelphia Bulletin, and Earl Selby, the newspaper's city editor. The grand jury's investigation centered on John J. Fitzpatrick, a former Democratic ward leader and a former Sergeant at Arms of City Council, who had been interviewed by an Assistant District Attorney on February 20, 1962, in preparation for the grand jury. On December 30, 1962, the Bulletin published an article entitled "Fitzpatrick's Secret Talk to DA is Bared." The article consisted primarily of what purported to be questions put to Fitzpatrick by the Assistant District Attorney, and Fitzpatrick's responses. The grand jury subpoena directed Taylor and Selby to appear before it, and to bring with them all documents, of whatever kind, relating to the interview with Fitzpatrick, as well as any documents relating to the paper's subsequent investigation as a result of leads furnished by Fitzpatrick. Id., 412 Pa. at 36, 193 A.2d at 182. Taylor and Selby appeared before the grand jury, but refused to answer several questions and refused to produce any documentary material, claiming that the Pennsylvania Shield Law protected them from being compelled to do so. The trial court held that the Shield Law protected a reporter only from being compelled to identify confidential sources --

[ 350 Pa. Super. Page 10]

    persons -- but that it did not protect the information that the sources disclosed to the reporter. It thus ordered that Taylor and Selby produce documentary material, carefully limiting its order to material that did not have the potential of disclosing the identity of a confidential source. In order to accomplish this, the order allowed the newspaper to delete such material as it thought necessary.*fn8

On appeal, the Supreme Court reversed, in a 6-1 decision. It held, per Chief Justice BELL, that although neither the Federal nor State Constitution protected Taylor and Selby against compelled disclosure, the Pennsylvania Shield Law did. The Court stated that the statutory issue "boil[ed] down in the last analysis to the meaning of ' the source of any information ' procured or obtained by such person." Id., 412 Pa. at 40, 193 A.2d at 184 (emphasis in original). Citing various dictionaries, the Court continued:

We believe the language of the Statute is clear. The common and approved meaning or usage of the words "source of information" includes documents as well as personal informants. [Citations omitted] "Source" means not only the identity of the person, but likewise includes documents, inanimate objects and all sources of information. Furthermore, if there were any doubt

[ 350 Pa. Super. Page 11]

    as to the interpretation, the Statute must be liberally construed in favor of the newspapers and news media. Id., 412 Pa. at 40, 193 A.2d at 184-85 (emphasis in original).

Having broadly defined the statute's coverage, the Court proceeded to analyze the conditions under which a reporter might waive the statute's protection. It noted that the trial court had ordered that certain documentary material be produced (albeit with names deleted) because it concluded that the newspaper, having published the name of its informant, had thereby waived its privilege regarding any information it received from that informant, whether or not the information itself had been published. The Court, in no uncertain terms, rejected this reasoning, as well as the trial court's solution of allowing the newspaper to redact names from the material it ordered disclosed. The Court's analysis demonstrated that it attached no significance to the fact that the newspaper had not kept the identity of its informant confidential.

If the Act of 1937 applies only to persons and does not include documents, then logically appellants would have to disclose and produce all documents in their possession. However, Judge KELLEY [the trial judge] in an attempt to fairly (although erroneously) limit the source of information to persons as distinguished from documents, ruled that appellants were required to produce only the documents and tape recordings allegedly evidencing what Fitzpatrick had told reporters with all names deleted. No one could know with certainty whether the documents as deleted by the newsman would still reveal sources of information which the Act intended to protect, Judge KELLEY based his ruling principally if not solely on his conclusion that the Bulletin had waived the privilege created by the Act of 1937 by publishing in its aforesaid article on December 30, 1962, the single sentence hereinabove quoted: "However, much of the subsequent questioning dealt with what John Fitzpatrick had told Bulletin reporters." This obviously gave Fitzpatrick

[ 350 Pa. Super. Page 12]

    as the leading source, but the identity of many other persons may have been revealed in the questions and/or the answers.

If a Court can select or direct newsmen in its or their judgment to select or delete what information is disclosed by the informer or to furnish the documents in full with only the names deleted which the newsman or the Court sincerely believes should be deleted, the purpose, the object and the intent of the Act will be realistically nullified. We therefore hold that a waiver by a newsman applies only to the statements made by the informer which are actually published or publicly disclosed and not to other statements made by the informer to the newspaper.

Id., 412 Pa. at 43, 193 A.2d at 186 (emphasis in original).*fn9

Taylor's broad interpretation of the term "source" drew a strong dissent from Justice COHEN. He argued that the purpose of the Shield Law was "to encourage the flow of news from persons who might otherwise fear the unfavorable publicity or retribution resulting from the revelation of their names as the source of the news story . . . . In other words, it is the name of the informant and not the information itself that is protected. Once the name of the informant is revealed, the purpose and protection of the Act is terminated." Id., 412 Pa. at 45, 193 A.2d at 187 (emphasis in original). Justice COHEN believed that the majority had erred because it

[ 350 Pa. Super. Page 13]

    confuse[d] "source of information" and "information" . . . . The source of the information was disclosed to the Grand Jury as John Fitzpatrick; what is now sought is the information given by Fitzpatrick. In reversing the contempt convictions, the majority rewrites the statute and permits appellants to conceal the information itself. One searches the majority opinion in vain for any basis to support this perversion of [the Shield Law.] Id.

Taylor was similarly criticized in contemporary literature. See Note, "EVIDENCE -- Newspapermen Not Required to Divulge Confidential Information to Investigating Grand Jury Even After Informant's Identity Has Been Voluntarily Disclosed in Newspaper Article," 112 U.Pa.L.Rev. 438 (1964); Note, "Evidence-Privileged Communications -- Journalist Need Not Reveal Information Disclosed by Confidential Informant -- In the Matter of Taylor (Pa.1963)," 77 Harv.L.Rev. 556 (1964). Other jurisdictions have not found Taylor persuasive and have declined to follow it in construing similar language in their shield laws. See Williams v. American Broadcasting Companies, 96 F.R.D. 658, 664-65 (W.D.Ark.1983); State v. Sheridan, 248 Md. 320, 322, 236 A.2d 18, 19 (1967).

Such criticism, which has considerable force,*fn10 might persuade us to distinguish Taylor from the cases before us, for it is true that the factual context in which Taylor arose was that of a subpoena duces tecum issued by a grand jury, while here we confront civil discovery motions. We do not believe, however, that Taylor may be convincingly distinguished in this way, for the issue to which we must look to Taylor for guidance -- the meaning of the term "source" -- is identical to the issue raised in the cases at bar. Even were this not the case, Taylor precludes us from making any such factual distinctions for in Taylor the Court instructed us not once, but twice, that "if there were any doubt as to the interpretation, the Statute must be liberally construed in favor of the newspapers and newsmedia." In re Taylor, supra, 412 Pa. at 40, 193 A.2d at 185. See also id., 412 Pa.

[ 350 Pa. Super. Page 14]

    at 42, 193 A.2d at 185-86. Moreover, Taylor presented a more attractive setting for narrowing the scope of a reporter's privilege than does that of a civil discovery motion. Courts, in considering claims of a reporter's privilege, have generally considered the interests of investigating grand juries and of criminal defendants to be far more compelling than those of civil litigants. See, e.g., Branzburg v. Hayes, 408 U.S. 665, 690, 92 S.Ct. 2646, 2661, 33 L.Ed.2d 626 (1972) ("[W]e perceive no basis for holding that the public interest in law enforcement and in ensuring effective grand jury proceedings is insufficient to override the consequential, but uncertain burden on news gathering that is said to result from insisting that reporters, like other citizens, respond to questions put to them in the course of a valid grand jury investigation or criminal trial."); Mitchell v. Superior Court, 37 Cal.3d 268, 278-79, 208 Cal.Rptr. 152, 158, 690 P.2d 625, 631 (1984) (Distinguishing scope of reporter's privilege in civil and criminal contexts, California Supreme Court finds that "[i]n criminal proceedings, both the interest of the state in law enforcement . . . and the interest of the defendant in discovering exonerating evidence outweigh any interest asserted in ordinary civil litigation." (citation omitted)). See generally P. Marcus, "The Reporter's Privilege: An Analysis of the Common Law, Branzburg v. Hayes and Recent Statutory Developments," 25 Arizona L.Rev. 815, 851 n. 259 (1983). The fact that our Supreme Court gave such a broad interpretation to the statutory privilege in Taylor indicates that it would find the case for such an interpretation to be even more compelling in the case of a civil litigant.

Although we may not distinguish Taylor on its facts, we do note that it was decided in 1963. As we will discuss,*fn11 there has been considerable development in the law of libel since that date. It does not follow from this development, however, that we may conclude that Taylor does not bind us because it is "old law." In 1968, more than five years after Taylor was decided, the Pennsylvania legislature

[ 350 Pa. Super. Page 15]

    amended the Shield Law. In doing so, it did not change the language "source of any information," but rather broadened the statute's coverage to include reporters employed by electronic media and the wire services. See and compare 28 Pa.C.S. § 330, Act of June 25, 1937, P.L. 2123, No. 433, § 1, as amended Dec. 1, 1959, P.L. 1669, § 1 with id., as amended July 31, 1968, P.L. 858, § 1, 28 Pa.C.S. § 330, and with 42 Pa.C.S. § 5942(a). When the Supreme Court has construed statutory language, and that language is not changed in subsequent versions of the statute, we must presume that the legislature "intends the same construction to be placed upon such language." See 1 Pa.C.S. § 1922(4).

Taylor's continuing vitality is also evident from a brief survey of relevant federal case law. All recent cases concerning the Pennsylvania Shield Law have been litigated in federal courts. These courts have been required to apply Pennsylvania law to cases that are virtually indistinguishable from those presently before us. They have uniformly considered Taylor's definition of the term "source" to be dispositive. Thus in Lal v. CBS, Inc., 726 F.2d 97 (3d Cir.1984), the plaintiff, a landlord, claimed that a television program broadcast by one of the defendant's local affiliates had defamed him. He sought to compel production of outtakes of interviews with him and other named interviewees, as well as other notes and memoranda. The district court reluctantly denied the plaintiff's motion because it considered itself bound, in a diversity action, by the Pennsylvania Supreme Court's interpretation of Pennsylvania law. Lal v. CBS, Inc., 551 F.Supp. 356, 366 (E.D.Pa.1982). The Third Circuit affirmed, also relying upon the authority of Taylor, as well as that of Steaks Unlimited, Inc. v. Deaner, 623 F.2d 264 (3d Cir.1980). Lal v. CBS, Inc., supra at 100.

In Steaks Unlimited, Inc. v. Deaner, supra, the plaintiff claimed that the defendant, an investigative reporter, had prepared a defamatory news broadcast concerning the quality of the meat it sold. It sought to compel the ...


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