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GEORGE HATCHARD AND MT. POCONO AMC/JEEP v. WESTINGHOUSE BROADCASTING COMPANY AND KYW-TV 3 (10/15/87)

decided: October 15, 1987.

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



Appeal from Order of Superior Court entered January 24, 1986, at No. 2219 Philadelphia 1982 reversing Order of Court of Common Pleas of Philadelphia, Trial Division, Civil Section, entered February 11, 1982, at No. 5727 October Term, 1979. Appeal from Order of Superior Court entered January 24, 1986, at No. 2219 Philadelphia 1982 reversing Order of Court of Common Pleas of Luzerne County entered February 21, 1985, at No. 2409-C 1984. Nix, C.j., and Flaherty, Hutchinson, Zappala and Papadakos, JJ. Larsen and McDermott, JJ., did not participate in the consideration or decision of these cases. Hutchinson, J., concurs in the result.

Author: Nix

[ 516 Pa. Page 186]

OPINION

These consolidated appeals present the question of whether the Pennsylvania Shield Law, 42 Pa.C.S. § 5942(a), protects from discovery by a plaintiff in a libel action all unpublished documentary information gathered by a television station.

Both appeals arise out of libel actions against local television stations and their parent broadcasting companies for news broadcasts that allegedly defamed the respective plaintiffs. In the first case, appellants George Hatchard and Mount Pocono AMC/JEEP, Inc., ("Hatchard") sued appellees Westinghouse Broadcasting Company and KYW-TV ("KYW"), complaining that certain news reports concerning Hatchard's sale of automobiles to the City of Philadelphia defamed Hatchard. On February 11, 1982 the trial court granted Hatchard's discovery request for the production of "outtakes"*fn1 but expressly excluded from discovery "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 . . . ."

In the other matter before this Court, appellant Lefkoski filed suit alleging that he was defamed by an NEP Communications, Inc. ("NEP") news broadcast that conveyed the view that his auto repair business had engaged in questionable practices. Lefkoski submitted a discovery request for a wide range of documentary material*fn2 that might contain

[ 516 Pa. Page 187]

    information that was available to NEP at the time that it broadcast the alleged defamatory news report. NEP took the position that it was privileged to withhold all documentary material except the materials that were actually broadcast. The trial court granted Lefkoski's Motion to Compel Production of the requested material.

Both orders were appealed*fn3 to the Superior Court, and the two appeals were consolidated for argument and decision. That court, sitting en banc, held that the documents in question were not discoverable. Hatchard v. Westinghouse Broadcasting Company, 350 Pa. Super. 1, 504 A.2d 211 (1986). Then-President Judge Spaeth, writing for the majority, expressed the view that this broad interpretation of the Shield Law was compelled by this Court's decision in In re Taylor, 412 Pa. 32, 193 A.2d 181 (1963), where we interpreted the Shield Law's protection of the "source" of media information as including documents as well as persons. The majority of the Superior Court insisted that it would have interpreted the Shield Law more narrowly if it had felt free to do so, and that based on a narrower

[ 516 Pa. Page 188]

    interpretation it would have affirmed the trial courts' rulings to the extent that they allowed the discovery of information that would not disclose a confidential media-informant.

The majority opinion in the Superior Court provoked several vigorous dissenting opinions.*fn4 The dissenters believed that the Superior Court was not bound by In re Taylor, supra, because that case involved a request for documents for use in connection with a grand jury proceeding and thus did not address the scope of discoverable information in a libel action. In addition, the dissenters noted -- as did the majority -- the significant changes in the law of defamation mandated by the United States Supreme Court's interpretation of First Amendment requirements. In light of these radical changes in the standards for recovery in defamation actions, the dissenters believed that In re Taylor could no longer be viewed as good law.

This Court granted the plaintiffs' petitions for allowance of appeal, assuming jurisdiction pursuant to 42 Pa.C.S. § 724(a) and Rule 1112 of the Pennsylvania Rules of Appellate Procedure. Since the appeals present the common question of the scope of the privilege from discovery afforded to television stations when they are ...


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