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filed: July 31, 1986.


Appeal from the Judgment of the Court of Common Pleas of Philadelphia County, civil at No. 3644 April 1973


Samuel E. Klein, Philadelphia, for appellant.

James E. Beasley, Philadelphia, for appellee.

Brosky, Popovich and Montgomery, JJ.

Author: Popovich

[ 357 Pa. Super. Page 575]

This is an appeal from a judgment of 4.5 million dollars entered against Philadelphia Newspapers, Inc. (PNI)*fn1 following a trial by jury in which the then First Assistant District Attorney of Philadelphia, Richard A. Sprague, was found to be defamed. We reverse in part and affirm in part.

[ 357 Pa. Super. Page 576]

PNI asks us to review the order of the trial court, affirmed by a court en banc, denying its motion for a new trial and/or judgment non obstante veredicto.

We will first deal with the denial of a new trial. The standard on which our review is premised in granting or refusing a new trial is one in which we will not reverse absent an abuse of discretion or error of law which controlled the outcome of the case. Allison v. Snelling & Snelling, Inc., 425 Pa. 519, 229 A.2d 861 (1967).

We begin with a recitation of the facts sufficient to dispose of the claim raised and reserve until later a more detailed accounting upon review of the judgment n.o.v. issue.

In September of 1972, Greg Walter was adjudged guilty in municipal court of violating Pennsylvania's wiretap law (18 P.S. § 3742) for recording phone conversations while on the staff of the Evening Bulletin. The prosecutor was Richard A. Sprague, who recommended a sentence of fifteen days to one year imprisonment. An appeal was taken to Common Pleas Court, where, sometime in 1973, a stipulation was entered into, the sum and substance of which is not herein revelant.

Because of Walter's criminal status, his duties were curtailed by the Bulletin. This led to his securing employment with The Philadelphia Inquirer, which is published by PNI. One of Walter's first assignments occurred in the early part of 1973. An article by Walter appeared in a series of stories published by The Inquirer linking Sprague to illegal activity engaged in by members of the Pennsylvania State Police (then headed by Rocco Urella, Sr.). This supposed association was made by the discovery of an alias ("Nicholas Pratko") purportedly used by Sprague and exposed him to attack by impugning to him knowledge of and complicity in the activity, i.e., the wiretapping of the Pennsylvania Crime Commission's phones during its investigation of alleged corruption in the Philadelphia police department.

[ 357 Pa. Super. Page 577]

During the period the "Pratko" stories were being released, Walter also was working with another Inquirer reporter (Kent Pollock) in the investigation of a 1963 homicide of one John Applegate. Sprague, as Chief of Homicide for the District Attorney's Office, handled the matter which culminated in the two suspects (Rocco Urella, Jr. and his classmate, Donald Scalessa) being released.

With the resurrection of the Applegate case and Sprague's refusal to submit to questioning by Walter and Pollock because of asserted statements attributed to them that they were out to "smear" him, The Inquirer decided to proceed to publish a number of articles in April of 1973 (credited to Walter and Pollock) detailing, and placing under scrutiny, Sprague's role in light of his "very close" ties with Rocco Urella, Sr., the father of one of the suspects.

Sprague filed a complaint in trespass contending that he had been libelled by the various articles and editorials appearing in The Inquirer. Following a trial which lasted approximately eight weeks and generated over four thousand pages in testimony, a jury awarded Sprague 1.5 million dollars in compensatory damages and 3 million dollars in punitive damages. This timely appeal was filed thereafter.

The first issue centers upon the propriety of the trial court's determination that PNI did not have the right to refuse to disclose its sources of information, and, upon failing to do so, all information related thereto was excluded from the jury's consideration.

The facts leading up to the exclusion start with Kent Pollock testifying on direct examination that the first he learned of Applegate was from a "source" who was very close to the Urella family. At this point in his testimony, the trial court interjected, "Who?" Counsel for Sprague seized the opportunity to seek a response to the question, while PNI's counsel objected. The matter was taken up in chambers.

Counsel for PNI argued that under Pennsylvania's Shield Law (42 Pa.C.S. § 5942(a)) Pollock should be allowed to

[ 357 Pa. Super. Page 578]

    testify fully as to the information garnered from the source without having to divulge his/her identity, nor should any adverse inference be drawn from his exercise of this statutory and First Amendment privilege. Further, PNI's counsel contended that, to the extent that the exercise of this privilege would hinder the plaintiff's ability to scrutinize the genuineness of the source, a balance had to be struck in favor of preserving the identity of the source, otherwise the purpose of the Shield Law, i.e., to encourage the free flow of information, would be undermined.

Counsel for the plaintiff, on the other hand, envisioned the Shield Law as no more than an investigative tool, the effect of which dissipated once the information conveyed by the confidential source was placed in print. Also, he felt that if a source signed an affidavit in support of the information given, this constituted a waiver of the privilege. Lastly, counsel for the plaintiff asserted that the remedy for failure to reveal a source should be an "adverse inference charge" by the court.

In response to the assertions of counsel, the trial court entered the following order:

If the defendant chooses not to reveal their sources, it is precluded from defending this action on the grounds that the articles in suit, or any portion thereof, were based upon information received from a reliable, but undisclosed source.

In order to implement this Order, all evidence of what information defendants received from allegedly reliable, but undisclosed sources, shall be excluded.

PNI's attempt to secure extraordinary relief from the Supreme Court of Pennsylvania was "denied without prejudice" in a per curiam order. The trial resumed thereafter, and the instances in which PNI's witnesses (Pollock and Robert J. Terry, also a reporter for The Inquirer) invoked

[ 357 Pa. Super. Page 579]

    the privilege of the Shield Law, so as not to reveal the identity of their sources, occurred during their cross-examination and numbered 26 in total.

It was a month-and-half into the trial, and two witnesses short of PNI completing its case, before the court and the parties discussed in chambers what evidence would be kept from the jury's consideration because of the June 13, 1983 order relating to the Shield Law. After this conclave, the jury was instructed to disregard the testimony of certain witnesses because of sources that were not disclosed. The court also told the jury that the defendant(s) did not have a right to refuse to reveal its sources, and, for doing so, "all evidence of what information defendants received from allegedly reliable, but undisclosed sources, shall be excluded."

The court proceeded to particularize the information that the jury was to ignore in its deliberations for the failure of the witnesses to disclose their sources in direct violation of his order:

First -- Prosecution Memorandum (Exhibit P-3-2). This was testified to by Pollock as having been obtained from a source he refused to reveal. (This document was sent by the Pennsylvania Attorney General's Office to the District Attorney of Montgomery County, which was the location of a motor lodge where the State Police wiretapping of the Pennsylvania Crime Commission took place; and the first Pollock learned of the name "Pratko" -- which was associated with Sprague, was from this instrument.)

Second -- Any information with respect to the statement in The Inquirer article of April 1, 1973 that read: "Subsequent to the homicide, Sprague boasted to at least one of his friends that he 'could get anything I want from Rocco Urella,' according to a sworn statement by the friend obtained by The Inquirer."

Third -- The language in the April 1, 1973 article to be deleted from consideration read: "Sprague's involvement with Urella Sr. became evident four days after

[ 357 Pa. Super. Page 580]

    the wiretaps were discovered when The Inquirer learned[] Sprague spent an entire day in conference with Urella at Urella's Delaware County home."

Fourth -- Pollock's testimony of a contact close to Urella family who told him certain alleged things. Refusal to reveal source required exclusion of any evidence in respect to this statement.

Fifth -- Terry's testimony that he had a source check police records to determine whether Applegate had criminal record was likewise to be removed from the jury's consideration.

At the close of the case, the court repeated its Shield Law directive and instructed the jury to "strike" from its consideration certain portions of the evidence. Numerous objections were lodged and denied; in particular, we cite counsel for the plaintiff's request that, as to the Shield Law, the jury should have been charged that "their failure to reveal sources would warrant a finding that there were . . . no sources; and therefore, that would constitute known falsity."

After the jury entered a verdict in favor of Sprague, timely post-verdict motions were denied, and judgment was affirmed by a court en banc (Judge Carson, dissenting).

The court below, in support of its decision that the Shield Law was inoperative to the facts, looked to a variety of material, one of which was the Pennsylvania Constitution, Art. 1 §§ 7 and 11. Perforce, the court interpreted § 11 "as creating a constitutional right to defamation." This precise argument was rejected recently in a 5-4 decision by this Court, sitting en banc. See Hatchard v. Westinghouse Broadcasting Co., 350 Pa. Super. 1, 18-21 n. 12, 504 A.2d 211, 220-21 at n. 12 (1986), allocatur pending; see also Coughlin v. Westinghouse Broadcasting and Cable, Inc., 780 F.2d 340 (3rd Cir.1985).

The Hatchard majority concluded that the provisions of the Constitution mentioned above did not entitle a litigant access to a s and other documentary material, as well as "outtakes", in the preparation of a libel suit

[ 357 Pa. Super. Page 581]

    against a news-media-defendant. Simply stated, the Court was not able to "agree that any of the constitutional provisions cited [, i.e., Art. 1, §§ 1, 7 & 11,] . . . create[d] any right to bring a defamation action . . . ." Id. Accord Mazzella v. Philadelphia Newspapers, Inc., 479 F.Supp. 523, 528-29 (E.D.N.Y.1979).

The court also invites our attention to Herbert v. Lando, 441 U.S. 153, 99 S.Ct. 1635, 60 L.Ed.2d 115 (1979), a case in which the United States Supreme Court held that the First Amendment did not preclude a plaintiff's inquiries into the editorial processes leading to publication of an allegedly defamatory television program. However, we do not read anything in Herbert v. Lando to vitiate our ability to interpret the Pennsylvania Shield Law. The Court there merely stated that the First Amendment does not afford a privilege to withhold editorial processes. As is relevant here, we note that there was no shield law in question before the high Court.

More on point, we believe, is the decision of Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972). The issue there was the obligation of reporters to respond, under grand jury subpoenas, to questions relevant to an investigation into the commission of crime. The Court ruled that there was no constitutionally protected right to refuse to appear before a grand jury. Of interest to us is the manner in which the Court dealt with Branzburg's contentions.

The petitioner-Branzburg was a staff reporter for a daily newspaper in Kentucky which carried a story, under his byline, detailing his observation of two individuals synthesizing hashish from marijuana. A photograph of the hands of these individuals was included, and the article recited that the petitioner had promised not to reveal the identity of these two. When the petitioner was subpoenaed by the county grand jury, he appeared, but refused to identify the individuals involved. A state trial judge ordered the petitioner to answer the questions posed and rejected his contentions that the Kentucky reporters' privilege statute (substantively similar to Pennsylvania's Shield Law), the First

[ 357 Pa. Super. Page 582]

Amendment or specific sections of the Kentucky Constitution authorized his refusal to answer.

On appeal, the Kentucky Court of Appeals affirmed on the basis that, inter alia, its shield law did not offer someone a privilege to refuse to testify about events he had observed. Although the United States Supreme Court agreed, it is important to remember the Court's caveat that it was "powerless to bar state courts from responding in their own way and construing their own constitutions so as to recognize a newsman's privilege, either qualified or absolute." 408 U.S. at 706, 92 S.Ct. at 2669. This is exactly what we are doing here. Except, we find it unnecessary to embark on an analysis of our Constitution to decide whether the relief sought by PNI is permissible, for it is clear to us that in enforcing the privilege enacted by the Shield Law, we are to construe the statute broadly. See, e.g., Lal v. CBS, Inc., 726 F.2d 97, 100 (3rd Cir.1980); In re Taylor, 412 Pa. 32, 40, 193 A.2d 181, 185 (1963). Thus, to the extent the court below wishes us to follow the lead of the State of New York, which condoned the preclusion of a media-defendant's use of any of its sources and information as proof of verification or evidence of responsibility when it opted to rely on its statutory privilege -- shield law (see Greenberg v. CBS, Inc., 419 N.Y.S.2d 988, 997, 69 A.D.2d 693 (1979)), we decline the invitation. To the same effect see Newton v. NBC, 11 Media Law Reporter 1950 (D.Nev.1985).

It is beyond cavil, as urged and relied upon by the court below, that the ruling at In re Taylor, supra, in which the scope of the precursor of the present Shield Law*fn2 was being construed, contained the following verbiage:

The language of each Constitution [, i.e., state and federal,] is clear, and by no stretch of language can it

[ 357 Pa. Super. Page 583]

    protect or include under "freedom of the press," the non-disclosure of sources of information.

412 Pa. at 39, 193 A.2d at 184. If we were to proceed no farther in our reading, we might be inclined to agree with the court below sanctioning PNI for its election not to disclose its sources. We do not because one must "read on" to secure the full meaning of the decision.

One learns that the media-defendant's right of non-disclosure was predicated upon the shield law, a statute which the Court repeatedly cautioned should be construed broadly so as to avail anyone invoking its privilege the right of non-disclosure with respect to "any source of any information". The defendant implemented the privilege to avoid having to disclose its sources to a grand jury investigating crime. This would appear to be consistent with the later ruling of Branzburg v. Hayes, supra.*fn3 Accord Maressa v. New Jersey Monthly, 89 N.J. 176, 445 A.2d 376, 383 (1982), cert. denied, 459 U.S. 907, 103 S.Ct. 211, 74 L.Ed.2d 169 (1982).

The Taylor Court was quite emphatic in its belief that:

[ 357 Pa. Super. Page 584]

It is a matter of widespread common and therefore of Judicial knowledge that newspapers and news media are the principal source of news concerning daily local, State, National and international events. We would be unrealistic if we did not take judicial notice of another matter of wide public knowledge and great importance, namely, that important information, tips and leads will dry up and the public will often be deprived of the knowledge of dereliction of public duty, bribery, corruption, conspiracy and other crimes committed or possibly committed by public officials or by powerful individuals or organizations, unless newsmen are able to fully and completely protect the sources of their information. It is vitally important that this public shield against governmental inefficiency, corruption and crime be preserved against piercing and erosion.

412 Pa. at 41, 193 A.2d at 185 (Emphasis added in part; footnote omitted). This tenet has been most recently re-affirmed by our Supreme Court in Hepps v. Philadelphia Newspapers, Inc., 506 Pa. 304, 485 A.2d 374 (1984), rev'd on other grounds U.S. , 106 S.Ct. 1558, 89 L.Ed.2d 783 (1986), albeit in dicta (see Hatchard, supra), to embrace the libel arena.

The United States Supreme Court reversed the Hepps decision so as to require a private individual-plaintiff to prove falsity in a defamation action. In the course of doing so, it recounted that during the Common Pleas Court trial, The Inquirer took advantage of Pennsylvania's Shield Law on a number of occasions, with the result that the trial court refused to give a charge benefitting either side on the ramifications of invoking the privilege. This fact was grasped by our Supreme Court as a trade-off for continuing to place the common law burden of proving truth on The Inquirer, since it felt that the law of libel was heavily weighed, already, in favor of the media-defendant. The United States Supreme Court did not agree that the libel scales were unnecessarily tipped toward the media-defendant and decided to shift the burden of proof as to "actual

[ 357 Pa. Super. Page 585]

    malice" (a concededly high obstacle to hurdle) back to the plaintiff.

The question arises: Is the trial court's remedial (exclusionary) measure tantamount to returning the scales in libel cases to a posture other than that set by the United States Supreme Court in Hepps? It would be if one equates the requirement that the defendant disclose its "sources" (going forward with the evidence) to be a prod, in essence, to prove the truth of the articles or suffer the consequences of exclusion. We deem it to be.

It is obvious to this Court that the plaintiff in Hepps was not to be accorded any preferential, procedural treatment by requiring the defendant to bear the burden of proving falsity to resolve a perceived imbalance in the law of libel when it came to proof. The Pennsylvania Supreme Court's belief to the contrary, its attempt to ameliorate the situation by pointing to the use of the Shield Law by the defendant as an equalizer, although not endorsed by the United States Supreme Court, was not condemned as constitutionally infirm. This is evident from the Court's remark that, "[i]n the situation before us, we are unconvinced that the State's shield law requires a different constitutional standard than would prevail in the absence of such a law." U.S. at , 106 S.Ct. at 1565. Thus, the Shield Law was stated to have no appreciable affect on the burdens of proof as the case stood before the high Court, which obviously was cognizant of the role played by the statute at trial without the attending exclusion of "source" evidence from the jury's purview.

To sanction the trial court's procedural recourse would be, we believe, to invalidate Pennsylvania's long-standing practice of establishing rules of evidence and privilege by legislative action. See Coughlin v. Westinghouse Broadcasting and Cable, Inc., 603 F.Supp. 377, 381 (E.D.Pa.1985), aff'd 780 F.2d 340 (3rd Cir.1985). Moreover, to conclude otherwise would be in derogation of our Supreme Court's admonition in Taylor to guard against an "erosion" of the Shield Law. In the same vein, we find the offer made to

[ 357 Pa. Super. Page 586]

PNI by the trial court, i.e., either disclose your sources or suffer the loss of all evidence related thereto being considered by a jury on the question of liability, to be no choice at all -- a Hobson's choice. See Taylor, 193 A.2d at 186 (Redacting the informant's name from documents and then making them available to other side was felt by the Court "realistically" to nullify the object and intent of the shield law).

We hold that the trial court, by excluding relevant evidence from the jury's bailiwick was, in effect, "exacting" a penalty upon the defendant for its exercise of a statutory right,*fn4 and trying to accomplish by indirection what it could not achieve directly. See Branzburg, supra, 408 U.S. at 681, 92 S.Ct. at 2656-57; Jamerson v. Anderson Newspaper, Inc., 469 N.E.2d 1243, 1250 (Ind.App.1984).

Furthermore, Sprague's contention that PNI's position would permit it to use the Shield Law as a "sword", resulting in a deprivation of his due process rights to explore the reasonableness of the reporters' pre-publication actions is not persuasive. See Coughlin, supra, 780 F.2d at 342 ("Shield Law does not . . . result in a denial of due process in violation of the fourteenth amendment of the United States Constitution.").

To the extent that the New York Supreme Court takes a different approach to resolve this vexing set of circumstances, see Greenberg v. CBS, Inc., supra, we prefer to retain the spirit of our Shield Law intact and not debilitate it by veiled attempts to strike a balance in an area which we believe is best left to the Legislature to resolve, as has been the case in one state. See Tenn.Code.Ann., Sec. 24-1-208(b), wherein the absolute privilege of the shield law is rendered nugatory "with respect to the source of any allegedly defamatory information in any case where the

[ 357 Pa. Super. Page 587]

    defendant in a civil action asserts a defense based on the source of such information." For an analogous setting see Hatchard, supra at 222 n. 12.

Of the 26 states which currently have Shield Laws,*fn5 8, including Pennsylvania, have what has been described as "the 'ultimate' in news media protection; that is, the press has a seemingly unassailable privilege not to disclose the source of any information obtained in the course of employment." Jamerson, supra, 469 N.E.2d at 1248 & n. 3. This preference for and continued endorsement of the privilege in this Commonwealth is evidenced by the Legislature's re-enactment of the 1937 statute without substantial change in July of 1976. See note 2, supra; Hatchard, supra; Jamerson, supra; see also Coughlin, supra, 603 F.Supp. at 380 n. 3.

We are unpersuaded by the course taken by some sister states in this sensitive and always volatile cauldron of the law.*fn6 We think it prudent to maintain the status quo, i.e.,

[ 357 Pa. Super. Page 588]

    use of the Shield Law and evidence related thereto, which has been viewed by the United States Supreme Court in Hepps without any voiced objection by a majority of that Court.*fn7 Our approach is no less inimical to the plaintiff than presently exists under Hepps. This is reflected in the cogent observations of Circuit Judge Becker in his Concurring Opinion in Coughlin :

780 F.2d at 349 (Emphasis in original). See also Samuelson v. Susen, 576 F.2d 546, 553 (3rd Cir.1978) ("No doubt the statutory provisions affect the manner in which plaintiff may develop evidence to support his defamation claim. Plaintiff is not, however, foreclosed from prosecuting his claim with other evidence, both direct and circumstantial." Cited with approval by the District Court in Coughlin, supra at 382). In addition, we see merit in the suggestions of PNI in its brief to us at page 48, wherein it wrote on the subject that:

The proper course . . . would have been to permit the reporters to testify, and be cross-examined, about all information they had at their disposal prior to publication of the articles in suit. To the extent that the reporters declined to identify the sources for certain portions of the information they had obtained, the jury would be called

[ 357 Pa. Super. Page 589]

    upon, as it is in all cases, to gauge the credibility of the witnesses and their testimony based upon the tests of credibility to be applied to the testimony of any witnesses. Thus, the jury would be free to believe or disbelieve the reporters' testimony concerning the existence and reliability of confidential sources.

We are not insensitive to the position of the plaintiff, given his status as a "public official" for purposes of this case and the attendant heavy burden placed upon him by New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), considered difficult, if not impossible, to discharge by some. See Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 769-770, 105 S.Ct. 2939, 2951, 86 L.Ed.2d 593 (1985) (Concurring Opinion of Justice WHITE). Our decision is made all the more difficult because of the countervailing forces at work, each trying to protect and preserve whatever liberty and property interests remain in the wake of Sullivan and the Shield Law. Nonetheless, make one we must.

Mindful that freedom of the press is a fulcrum upon which some of our cherished liberties hinge, we have considered the well-written briefs of both sides, the thoughtful and incisive opinion of the court en banc and conclude that, at least in this jurisdiction, the statutory and case law condone the use of testimony to explicate when, where and how information is garnered without the correlative requirement of source-disclosure by a back-door approach excising evidence from a trier-of-fact's consideration for failure to identify one's artery of information. To remedy the error of law, a new trial is warranted.

We next proceed to evaluate the denial of PNI's judgment n.o.v.

Our task is to make an independent*fn8 examination of the evidence adduced to determine if it was constitutionally

[ 357 Pa. Super. Page 590]

    sufficient to warrant a finding by the jury of actual malice, and in so doing, the evidence, together with all reasonable inferences therefrom, must be considered in the light most favorable to the verdict winner, here the plaintiff. If it is not sufficient, [the defendant] is entitled to judgment n.o.v.

Corabi v. Curtis Publishing Co., 441 Pa. 432, 458, 273 A.2d 899, 912 (1971).

Before proceeding further, it requires mentioning that Sprague's position as First Assistant District Attorney for Philadelphia County in 1973 rendered him a public official. Curran v. Philadelphia Newspapers, Inc., 497 Pa. 163, 439 A.2d 652 (1981). Accordingly, the plaintiff, in order to recover, had to establish that PNI published*fn9 the

[ 357 Pa. Super. Page 591]

    complained-of articles with actual malice, i.e., with knowledge that they were false or with reckless disregard of whether they were false. Sullivan, supra; Corabi, supra; Curran, supra.

The material which the jury found to be legally offensive would appear to begin with The Inquirer publication of March 25, 1973, written by Greg Walter and titled: "Ex-Official Denies Report Linking Sprague to 'Pratko'", with a follow-up caption -- "Report Linking Sprague, 'Pratko' Is Denied" -- appearing on another page carrying a continuation of the story.*fn10

Of the twenty-two paragraphs in the article, four specifically made reference to either Sprague or a named, former Justice Department official denying that he (Sprague) was using the alias "Nicholas Pratko", a name which surfaced during the court-martial of three State Troopers charged with wiretapping the phones of the Pennsylvania Crime Commission's investigation of purported police corruption in Philadelphia. "Pratko" was to have been in constant contact with the former State Police Commissioner, Rocco Urella, Sr.

The connection with Sprague came by way of a report prepared by a State Policeman attached to the Crime Commission (Sgt. Matthew Hunt). The report detailed that, according to informed sources, a telephone operator at the State Police Academy volunteered that "'Pratko' was Richard Sprague."

Two days later, The Inquirer carried a story by Howard S. Shapiro -- "Witness Ties Sprague To Mystery Figure in Trooper Wiretap Case"*fn11 -- tying Sprague to "Pratko" through Sgt. Hunt's testimony at the court-martial proceedings. He was to have stated that a confidential source told him that "Pratko" was thought to be Sprague. In the second column of the article, it was reported that Sprague "vigorously" denied any link to "Pratko".

[ 357 Pa. Super. Page 592]

On March 31, the same reporter wrote a sequel in which he noted that a decision on the court-martial would be forthcoming. He also recounted how Sprague had been mentioned by Sgt. Hunt as using an alias in the registration of a vehicle found at the motor lodge where the wiretapping took place.*fn12

A second set of articles was preceded by an exchange of communiques beginning with a March 14, 1973 telegram asking Sprague interrogatories regarding the death of John Applegate. The next day, Sprague responded to the executive editor (Eugene L. Roberts, Jr.) of The Inquirer that his prosecution of one of the Yablonski murder cases rendered it "impossible" to answer the detailed questions posed by Pollock and Walter. He also mentioned his prosecution of Walter, the pending appeal thereof, and reports from "reliable" individuals that the reporter was "out to get" and "smear" him. He did state, however, that upon completion of his work he would answer any questions.

A second telegram, dated March 16, consented to a delay. Sprague responded by letter on March 28. In it he reasserted that Walter was out to "smear and destroy" him, and those individuals who were present when these remarks were allegedly made were named. He also referred to the "Pratko" serials. In closing, he denied any wrong-doing in the handling of the Applegate matter, and was willing to have it examined by an "impartial, independent individual."

In answer, Roberts wrote on March 29 that Walter's involvement in the story would be to "aid" Pollock, with the writing reserved to Pollock. Roberts also stated how the prosecution of Walter had been questioned by The Inquirer and how Sprague's feeling, that a reporter once charged should not participate in a story about his prosecutor, caused him "concern."

The next salvo came from Sprague. He responded in a letter of even date that his purpose was to convey the possible motivation behind Walter's "malicious" statements,

[ 357 Pa. Super. Page 593]

    and, as for Pollock's fitness, he concluded not to allow Pollock an interview either, after being advised by one of his contacts that Pollock had said: ". . . we are out to get Sprague." As a result, Sprague's willingness to be interviewed would have to occur in the absence of both Pollock and Walter.

Roberts' retort was in the form of a second letter in as many days that to acquiesce to a public official's objection to a specific reporter covering a story would be to render the official a "de facto" editor of The Inquirer. This he could not approve.

Roberts repeated his request that Sprague submit to questioning by Pollock and, this time, one Aaron Esptein. If there was no reply, whatever story had been prepared would be run with a notation as to Sprague's reasons for declining to talk.

True to his word, The Inquirer published thereafter two articles, both under the byline of Pollock and Walter. The first, printed on April 1, was headlined: "Did Sprague Quash Homicide Case as Favor to Urella?" "Sprague, Urella Tied to Wiretap, Homicide Cases."*fn13

The introductory paragraphs to the approximately two-and-one-half-page, five-column story intermingled the "Pratko" incident with the Applegate homicide. It then proceeded to "link" Sprague and Urella, Sr. to the wiretap incident, with a denial by Sprague. The article then discussed what transpired subsequent to Applegate's death, e.g., Sprague's late-night drive with Urella, Sr. to police headquarters and his participation with police in deciding not to prosecute Urella's son. Continuing, the writers recited in detail the facts surrounding the homicide, as garnered from those present and a so-called "official report" attributed to Sprague, to which repeated references were made as being deficient when compared to and inconsistent with respect to the witnesses' accounts of the incident.

[ 357 Pa. Super. Page 594]

The article described Urella, Jr.'s roommate's discharge at the magistrate hearing as coming at Sprague's urging. And, it was reported that Sprague boasted after the homicide to one of his friends, who gave a sworn statement of the same to The Inquirer, that "he 'could get anything [he] want[ed] from Rocco Urella.'"

The second Inquirer story of note appeared April 2, and sought, again, to associate Sprague with the wiretapping controversy surrounding Urella, Sr.*fn14 In the second and fifth paragraphs, according to sworn testimony given before the Crime Commission by a receptionist in Urella's office, Sprague was "in constant touch" with Urella.

The other article and editorials in The Inquirer add little to the manner in which Sprague was portrayed in the writings already discussed. Thus, although we will not make specific reference to them, we nonetheless, are cognizant of their existence.*fn15

At trial, Sprague attempted to prove that the articles and headlines cited were false, that PNI was aware of their falsity or, in the alternative, acted in reckless disregard of their truth or falsity by failing to determine their accuracy.

While Sprague was on the stand, he denied any involvement in the "Pratko" affair or engaging in any impropriety with regard to the Applegate case. In particular, Sprague, in reference to the April 1 article, denied the existence of any "Sprague report" and refuted the non-existence of homosexual charges against Applegate by quoting from the summarization sheet in the Philadelphia police homicide file (criminal extract # 260719) containing a conviction for sodomy in 1953 and a 1960 charge of solicitation that was still

[ 357 Pa. Super. Page 595]

    outstanding as of the time of Applegate's demise. The file also disclosed, contrary to the same article, that Urella, Jr. and Funk (Applegate's roommate) were administered lie-detector tests and passed.

Sprague steadfastly maintained that at no time did he try to cover-up Applegate's death, which was preceded by an innocent meeting of the victim by Urella, Jr. and Scalessa in a bar. A subsequent trip to the victim's apartment, under the pretext to secure a woman and more alcohol, ended in Scalessa striking him on the face for making a homosexual remark and lunging at Scalessa to prevent departure.

Sprague stated that because in his own mind he questioned whether Scalessa was saying he threw the punch at Applegate to protect Urella, Jr., he requested they take lie-detector tests, and, also, that LaSalle students be asked what Scalessa might have said to them regarding the incident before the news of the death became public. This was done and a pattern of consistency emerged supportive of who struck Applegate, i.e., Scalessa and not Urella.

As for the specific content of the April 1 article, to which reference has not already been made, Sprague denied that: 1) he "declined to prosecute" Urella; 2) he recommended no prosecution "despite objections by the police"; 3) he was in "constant touch" with the then Commissioner Urella as to the investigation being conducted by the State Crime Commission; 4) he was "in conference" an entire day with Urella at Urella's Delaware County home four days after the wiretaps were discovered; 5) he refused to be interviewed by The Inquirer; 6) unanswered questions existed about Applegate; 7) in 1971 he was a Special Crime Commission Investigator in Delaware County to look into corruption after Urella left office; and 8) he "urged" magistrate to discharge Scalessa -- only "recommended". Lastly, as for Urella's late-night drive of Sprague to the police station, Sprague had no specific recollection.

As for the "Pratko" connection, Sprague produced an April 5 news release issued by the executive director of the Pennsylvania Crime Commission disavowing any knowledge

[ 357 Pa. Super. Page 596]

    by the Commission that "Pratko" was an alias of Sprague's. To the same effect, a letter from the Commissioner of the Pennsylvania State Police indicated that a conversation with Sgt. Hunt had produced no information to the contrary.

In an accompanying letter, Sgt. Hunt recounted how he had been "abruptly interrupted" at the court-martial proceedings, wherein he made mention that a confidential informant "thought" that Sprague was possibly utilizing the code name "Pratko," so as not to be able to elaborate further that he had personal knowledge of who "Pratko" was, and that it was not Sprague.

To place matters in perspective, it requires mentioning that in 1972 the Commission was investigating the Philadelphia police department, and Sgt. (now Lieutenant) Matthew E. Hunt -- working for the State Attorney General -- was field supervisor for the Commission's agents looking into corruption in the City of Philadelphia. One of his duties related to the now ill-fated wiretapping incident of the Commission's agents in a Montgomery County motor lodge that resulted in the court-martial of three state troopers.

Furthermore, Officer Edward J. Brooks, in charge of investigating Applegate's death, stated that Sprague did nothing to "interfere" with the case or the conclusions he drew from the evidence. As he remarked, there was only one thing different Sprague did that had not been done before, i.e., he asked that Urella, Jr. and Scalessa be given a polygraph. In 1963, it was the practice of the police that where an individual admitted to the commission of a crime, one could "almost positively" say that "you didn't polygraph." Yet, Sprague went that additional step.

Harry G. Fox, Chief Inspector of Detectives in 1963, echoed Brooks' sentiments that Sprague made no effort to influence the investigation or his decision-making. He did offer that because everyone knew Urella, Sr., they tended to do "something more than we do ordinarily." He opined that if Urella, Jr. had not been the son of a policeman, he would not have been arrested, and, probably, Scalessa would not have been arrested either because, basically, of

[ 357 Pa. Super. Page 597]

    the recommendation of the assistant district attorney, Sprague.

Both witnesses agreed that a right to re-arrest existed but was not exercised following Scalessa's discharge by the magistrate.

Upon the evidence presented, the trial court determined initially, as it was obligated to do under the law (see Corabi, supra), that the "Pratko" and Applegate publications were susceptible to a defamatory meaning. The jury's verdict reflects a concurrence.

We have no quarrel with the preceding conclusion, nor with the finding of falsity as to Sprague's involvement in the "Pratko" episode or his "quashing" of the Applegate case as a favor to Urella.

Having determined that the printed word was both false and defamatory, we need to decide whether PNI was guilty of doing so with "actual malice." See Concurring Opinion of Justice WHITE in Dun & Bradstreet, Inc., supra, 105 S.Ct. at 2949, citing Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974) and Sullivan, supra. The task is not an easy one, and never has been since Sullivan, in striking a balance between the public's interest in being fully informed about public officials and public affairs and the competing interest of those who have been defamed in vindicating their reputations.

The United States Supreme Court has given us some direction in this area in its recent decision of Bose Corp., supra. It wrote there:

The burden of proving "actual malice" requires the plaintiff to demonstrate with clear and convincing evidence that the defendant realized that his statement was false or that he subjectively entertained serious doubt as to the truth of his statement. See, e.g., New York Times v. Sullivan, supra, 376 U.S., at 280, 84 S.Ct., at 726; see also Gertz v. Robert Welch, supra, 418 U.S., at 342, 94 S.Ct., at 3008; St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 1325, 20 L.Ed.2d 262 (1968); see

[ 357 Pa. Super. Page 598]

    generally W. Prosser, Handbook on the Law of Torts 771-772, 821 (4th ed. 1971).

466 U.S. at 511 n. 30, 104 S.Ct. at 1965 n. 30.

To start with, after culling the relevant adjudicative facts, we have been unable to uncover "clear and convincing" evidence that PNI had knowledge that what it published was false. We are left, therefore, as phrased most aptly by Sprague's counsel early on in the trial as the parties met in chambers, with "the issue [of] whether they acted in reckless disregard of the truth." See Sullivan, supra, 376 U.S. at 280, 84 S.Ct. at 726; Anno., Libel and Slander: What Constitutes Actual Malice, Within Federal Constitutional Rule Requiring Public Officials and Public Figures to Show Actual Malice, 20 A.L.R.3rd 988, § 4[a].

Federal cases have provided guidance to the states in defining a "reckless" publication. In Garrison v. Louisiana, 379 U.S. 64, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964), the necessity for a showing that "only those false statements made with the high degree of awareness of their probable falsity demanded by [ Sullivan ]" was emphasized. 376 U.S. at 74, 86 S.Ct. at 216. "Reasonable-belief" was not equated with the "reckless-disregard-of-truth" standard. The test enunciated by Sullivan is not that of ordinary negligence; and defeasance of the privilege is conditioned, not only on negligence, but also on reckless disregard for the truth. Id.; Anno., 20 A.L.R.3rd 988, § 4[a] at 998-99.

The most expansive effort to elaborate on the scope of "reckless disregard", as applied to the First Amendment dissemination of information, came in St. Amant v. Thompson, 390 U.S. 727, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968). The Court admitted that the perimeters of the phrase just mentioned would evolve through a case-by-case adjudication. It then proceeded to discuss:

Mr. Justice Harlan's opinion in Curtis Publishing Co. v. Butts, 388 U.S. 130, 153, 87 S.Ct. 1975, 1991, 18 L.Ed.2d 1094 (1967), stated that evidence of either deliberate falsification or reckless publication "despite the ...

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